- Mark Markovich
Oregon Labor Commissioner Brad Avakian's office has said in recent months he hadn't formed an opinion on whether drivers for Uber amount to employees rather than contractors—a designation that would make the multi-billion company liable to give them a minimum wage, unemployment and workers' comp benefits, and other protections. Bureau of Labor and Industries (BOLI) staff has also noted that Oregon's laws differ from California's, where a labor commission found earlier this year that Uber drivers are employees (a finding that awarded a driver thousands).
Nevertheless, Avakian unleashed an abrupt warning shot to Uber (and by extension its competitor Lyft) suggesting BOLI would find in favor of any driver who complained they weren't getting adequate protections. That "advisory opinion," based on cases in California rather than any finding of fact in Oregon, but notes Uber's activities in both states are "substantially the same."
The opinion suggests Uber drivers are employees because Uber exerts a great deal of control over its drivers—including dictating what they can charge—has invested a great deal more into the endeavor than individual drivers, and engages in a relationship with drivers that might exist "indefinitely," among other things.
Crucially, Avakian also found out that an exemption in Oregon's minimum wage law for "taxicab drivers" might not apply to Uber drivers. "Even if the exemption did apply, however, Uber drivers would still be covered by other important workplace protections such as the right to be paid in full and on time, and the right to work free from discrimination and harassment," Avakian wrote.
The opinion has no formal sway, but it's a solid indicator of where the bureau might fall if a driver petitions for protections as an employee.
"It isn’t intended to invite anything except Uber, its workers, and other similar companies to understand how Oregon law could be applied to their situation," Avakian tells the Mercury. "I would hope Uber would find it helpful and take that opinion seriously"
Avakian says his staff spoke with Uber when he was forming the opinion, and that BOLI gave the company a heads up that the document was being released. Uber hasn't responded to a request for comment, but tells Willamette Week that Avakian's opinion is "plain wrong."
Update, 3:30 pm: Uber has sent along its statement, which reads in part: "The Oregon Bureau of Labor and Industries issued this opinion without apparently talking to any drivers and after a brief five minute phone call with Uber that came out of the blue. Unsurprisingly, it’s full of assertions that are plain wrong. It’s disappointing that a public body would have so little regard for the facts."
Avakian says his opinion isn't coming out of the blue. He was asked, formally, by City Commissioner Steve Novick to scrutinize Uber's employment practices in June, but says people ask him about Uber drivers' status all the time.
"I have for many months been getting requests on what the status of Uber drivers is," he says.
Novick, who did battle with Uber this year before spearheading a process that wound up allowing the company into Portland, welcomed Avakian's opinion in a prepared statement.
"I have long been concerned about the working conditions for taxi drivers and the growing trend in emerging, internet-based industries that exclude workers from the kind of protections and benefits that employees have," Novick said. "I think that if Commissioner Avakian’s advisory opinion is followed, Oregon can continue to foster innovation while guaranteeing basic worker protections and supporting working families.”
City council is expected to rule on final regulations for Transportation Network Companies like Uber next month.