Caroline Beskur

LAW 3123 Midterm Exam

1. Based solely on the facts stated, I think Uber drivers are independent contractors. If

using the common law stated on the IRS website to determine whether they are independent

contractors, we can look at each item: 1. Behavioral: Does the company control or have the

right to control what the worker does and how the worker does their job? The worker’s job is to

pick up a passenger and drop them off, how they do it is up to the driver; they use their own car

and their own gps or one provided by Uber through the app, but not required to use their

navigation system. Drivers are matched with passengers based off of the location of where they

are so drivers are able to go to any location they choose, they are also free to decline a

passenger in some cases too. This gives them control. Overall the behavior control is minor.

2. Financial: Are the business aspects of the worker’s job controlled by the payer? The driver

is paid through the app that then links to their bank account. The more customers the driver

has, the more money. There is no maximum or minimum number of customers except that

UberBlack drivers have to give at least one ride every thirty days, and UberX drivers give at least

one ride every 180 days. This is hardly being controlled because how can one be a driver if

they’re not driving anyone.

3. Type of Relationship: Are there written contracts or employee type benefits? Will the

relationship continue and is the work performed a key aspect of the business? The only written

contract is their terms of service and guidelines, there are no benefits. The relationship

continues as long as the driver would like it to and they can stop or pause it at any time given

that they did not violate any policies. The FLSA uses the Economic Realties test, the conditions
is as follows: 1. Who has the right to control how, when, and where the work is done? The

Driver has control over all of these aspects as stated previously. 3. What is the method of

payment? The method of payment is based on each ride where the driver takes 75% of the

ride’s cost, but based on the ride, the driver might receive less. 4. What is the duration of the

working relationship? The duration is as long as the driver wants, since they are only expected

to finish the ride that they have agreed to do. 5. Does the work require some type of special

skill? No, they are only required to be able to drive and be able to navigate with gps. These

questions are the only relevant questions pertaining to Uber and it’s drivers. Uber provides the

technology and a way to connect with customers and allow them to pay through the app but

the driver is the one who is able to utilize it to earn a profit. Due to all the control they have

from choosing their hours, how many days to work, how many customers they decide to have

and choose the location of where they’d like to work, I believe they should be classified as

independent contractors. Had uber designated min./max. on any of the things previously

stated, they would not be considered independent contractors any longer.

 2. Tom is bringing a disparate treatment claim under Title VII. He must present enough

evidence to allow the judge/jury to assume that discrimination took place by presenting a

prima facie case. There is direct evidence of discrimination because their policy states that they

refuse to hire anyone over 5’4 and the average height for a man is 5’9 and a woman is 5’4. His

protected class is his gender which is male. He was more qualified for the position than the

other applicant. He was denied the job and instead the job was given to a female with lesser

qualifications. If he’s able to prove the prima facie case then he must provide evidence of lawful

motive for the employment decision. If he can provide that evidence, the Plaintiff can rebut by

either providing evidence that generates doubt on their claimed motive and/or supplying other

evidence supporting the claim of a discriminatory motive. Some defenses that Little Ones Day

Care Center can say are that “children feel safer and more comfortable with people who are

closer to them in height”. Being able to provide any factual evidence on that to support that

defense would be beneficial to them. Another argument of theirs would be that they weren’t

purposely discriminating against any genders, Nancy fit their criteria which was the height

requirement, she was still qualified, and they can say that if it were a man with her height they

would’ve hired him instead of Tom too. I would award judgement to Tom as the policy had an

adverse impact on gender, a protected class, and it was unfair to him since he had the better

qualifications for the job. Any other job that didn’t have a height requirement would have hired

the person with the better job experience.

 3. a) An employer should use multiple recruiting mechanisms rather than relying solely

on one way of getting the word out about employment opportunities.

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b) Employers should not directly inquire about those categories protected by Title VII, since

doing so will automatically violate Title VII.

This is

c) Once an employee establishes a prima facie case of disparate treatment discrimination there

are no defenses available to the employer, and the employer will lose the case.

This is inadequate/bad legal advice; If a Plaintiff proves a prima facie case, the

Defendant has to provide evidence of “lawful motive” which is a defense to them and

gives them a chance to still win. You should not tell someone they are going to lose a

case if there’s a chance they won’t.