Erica Mighetto protests outside the San Francisco Uber headquarters on May 8, briefly shutting down traffic, demanding fair wages and fair labor practices. Photo: Jason Doiy/ALM

Uber drivers still aren't employees under new case law and California statutes, according to the San Francisco-based ridesharing company's lawyers.

A Gibson, Dunn & Crutcher team led by Theodore Boutrous Jr. in Los Angeles wrote that "no court has ever found that drivers who use the Uber App are Uber's employees under any standard," responding Tuesday to a motion for preliminary injunction in a case asserting that drivers are misclassified as independent contractors.

Even when applying the ABC test, a three-pronged standard outlined in the California Supreme Court's Dynamex Operations West v. Superior Court decision, the courts still have not wavered on Uber drivers' contractor designation, write Boutrous, Theane Evangelis and Heather Richardson of Gibson Dunn in Los Angeles and Joshua Lipshutz of the firm's Washington, D.C., office.

The Gibson Dunn attorneys claim that Thomas Colopy, who has driven for Uber since 2012 and hopes to represent a class of drivers, "argues only that he is likely to succeed on his contention that Uber has misclassified him because of Dynamex and the passage of AB 5, even though Dynamex was decided almost two years ago and AB 5 does not go into effect until January 1, 2020."

In the court Uber's lawyers also note that AB 5, which codified the Dynamex decision, is still not the law of the land. "Uber reserves the right to present arguments—if and when AB 5 takes effect and becomes relevant—that under AB 5, Colopy (and the putative class of drivers he seeks to represent) are not its employees," they wrote.

Colopy's lawyer, Shannon Liss-Riordan of Lichten & Liss-Riordan in Boston, filed the lawsuit even before the governor signed AB 5 and the same day the U.S. Court of Appeals for the Third Circuit ruled that Uber drivers could fall under an exemption in the Federal Arbitration Act (FAA) carved out for transportation workers participating in foreign or interstate commerce.

Although Colopy is not bound by an arbitration agreement since the parties agree he opted out of it, he claims the Third Circuit ruling in Singh v. Uber could release potential class members of their arbitration agreements and strengthen his chance of success on the merits, the plaintiff claimed in his motion for preliminary injunction.

However, Uber argues that the decision from the Third Circuit, which is the only court to hold that the exemption is not limited to transporters of goods, "cannot be reconciled" with the U.S. Supreme Court's decision in Circuit City v. Adams, which established the FAA's Section 1 exemption.

"First, Colopy is not a seaman or railroad employee, and does not fall within the 'other class of workers' to which the Section 1 exemption applies because he transports passengers, not goods," Uber's attorneys write.

Uber also contends that its drivers don't participate in interstate commerce. "To be sure, it is possible that some drivers who use the Uber App occasionally cross state lines in the course of transporting passengers within a single municipal area, but that fact is not enough to trigger the Section 1 exemption," they write.

Liss-Riordan said she looks forward to argue the preliminary injunction motion in court to promptly put to rest the question Uber's classification of its drivers throughout the state.

"Under Dynamex, it is clear that Uber drivers are employees, and that conclusion was solidified under California law with the recent passage of A.B. 5," she said in an email response. "However, Uber continues to thumb its nose at the law and thinks it can avoid all employment protections for its drivers simply by stringing arguments out in court."

The Third Circuit decision raises a fresh argument that can help Liss-Riordan oppose arbitration for drivers who did not opt out of the clause, she said.

"The Singh court recognized that the statements in the Supreme Court's Circuit City case, referring to transportation of  'goods,' was dicta," she said. "Uber drivers are involved in interstate commerce because their work includes transporting passengers at the beginning or end of their interstate journeys."