Uber is facing another lawsuit. That may not sound like news at this point. This time it involves allegations of drivers sexually assaulting passengers. This is not the first time someone has leveled such allegations against an Uber driver, just one of the more recent. This lawsuit is in San Francisco. Other similar allegations involve drivers in New York City, Texas, India and Australia to name just a few. What’s going on? While I hope that none of you have these issues, could this happen to you? Are there preventive measures you can take to avoid being in the same type of situation? Absolutely. Read on to learn more…
(image from skylink.com.au)
Let’s start with that most recent lawsuit. Two women, identified as Jane Doe 1 and Jane Doe 2 filed suit on behalf of themselves and similarly situated female Uber passengers, alleging that “thousands” of female passengers have been subjected to “rape sexual assault, physical violence and gender-motivated harassment” while using Uber’s services. The 2 named plaintiffs (albeit as Jane Doe) allege that they were sexually assaulted by Uber drivers. Let’s come back to this case in a moment.
In August, an Uber driver in New York City allegedly drove an intoxicated woman from Manhattan to his home in Queens and had sex with her while she was unconscious. Police apparently have not yet found the driver. An Uber spokesperson did say that the report was “very concerning” and that Uber was “looking into it”.
A female passenger in India alleges that an Uber driver raped her. Oh, and that driver was already awaiting trial on at least four other criminal charges. He has since been sentenced to life in prison. To make matters worse, Uber is facing additional legal troubles over a former Uber executive managing to obtain her medical files and showing those records to Uber’s then CEO Travis Kalanick and SVP Emil Michael, after having them in his possession for months beforehand. That executive is no longer working at Uber, but the passenger has sued Uber for invasion of privacy.
It’s one thing when there’s one allegation or lawsuit, or even when there is more than one in one particular location. It’s an entirely different matter when these types of allegations materialize across the country, or, in this case, globally. If that’s not a pattern, well then, what is?
What does this pattern suggest for employers? Let’s return to the lawsuit just filed in San Francisco. In particular, the complaint says it very well:
“Uber has done everything possible to continue using low-cost, woefully inadequate background checks on drivers and has failed to monitor drivers for any violent or inappropriate conduct after they are hired. Nothing meaningful has been done to make rides safer for passengers — especially women. This is no longer an issue of “rogue” drivers who act unlawfully.”
Yes, adequate pre-screening of drivers, including criminal background checks and fingerprinting, and monitoring drivers after hiring them could probably have prevented most of the (alleged) assaults. (I’ve written about criminal background checks and liability for independent contractors here, here and here.) This point, however now shines a big spotlight on the elephant in the room: Uber’s loud insistence that its drivers are not “employees” and that it is not an employer. Uber stoutly asserts that it’s a “technology platform,” allowing it to avoid regulations that would govern drivers for a taxi or limousine company. Uber, in arguing that it is not an employer (or a transportation company) is trying to avoid liability for negligent hiring and retention and skirt regulations that apply to taxi and limousine compaies. Here lies the rub: Even when you hire an independent contractor, you can still be liable for that person’s misconduct if your failure to take reasonable steps lead to someone else being harmed. In other words, even if Uber could win the argument that it is not an employer and its drivers are not employees (I’ve written about the classification issue here) that probably would not help them in this case.
OK, if you’ve read my other posts, you know already know the burning question: What can the rest of you employers learn from this particular Uber issue? When I have to sum things up in one sentence or less for clients, it often comes down to these three words: DON’T GET CUTE!
Uber is living proof that sometimes cute really is a four-letter word–and that it could cost you millions (or billions) of dollars. If you were jealous of Uber when its explosive growth started, if Uber was your model of how to run a lean and mean business and make lots of money, it should now be your model of what not to do. Calling yourself one thing to avoid having employer responsibilities when you are getting all the benefits of being an employer is a recipe for disaster. If you have people working for you –even if they are legitimately classified as independent contractors–and they have contact with the public, you will have some responsibility in ensuring that the people you hire are not a threat to others’ safety. In all likelihood you will also be liable when their actions or omissions harm others if you could have taken reasonable preventive measures.
Let’s end there for now. See you next week and don’t eat too much turkey!
That should be enough to hold you for now. We’ll continue next week, probably a little earlier than usual due to Thanksgiving. See you then!
Good news! If you missed the live presentation, you can now get the recording of my webinar “Navigating the Employee Leave Overlap: FMLA, ADA and Workers’ Comp)”.
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