A case involving the classification of Uber Black drivers as employees rather than contractors is not going to be reviewed by the Supreme Court, kicking it back to the trial court in the 3rd Circuit.

The high court denied review Monday in the case of Razak v. Uber Technologies, a case that originally was filed in the Eastern District of Pennsylvania. In the case, a group of drivers in the Uber Black service, which supplies higher-quality “black cars” to Uber customers, had sued the parent company, saying they should be classified as employees, not as drivers.

A lower court in the case held for Uber through summary judgment, finding that the drivers were contractors rather than full-time workers entitled to such benefits as minimum wage payments. But in March 2020, the 3rd Circuit overturned the lower court ruling, questioning its reasoning in the summary judgment. 

Fiona W. Ong, an employment attorney with the Baltimore law firm of Shawe Rosenthal, said the Supreme Court’s denial of Uber’s request for a hearing does not establish any new legal precedents in the arena of independent contractor versus employee law. Rather, she said, it simply moves the case back to the trial court, where it will need to consider questions that the full 3rd Circuit, in overturning the lower court decision, said had not been addressed.

“The trial court ruled in favor of Uber and then the circuit court said, ‘Not so fast,’” Ong said in an interview with FreightWaves, adding that the circuit court said “there are enough questions that the lower court should not have automatically given the judgment to Uber Black.”

The original lawsuit was filed by three Uber Black drivers. In a review of the circuit court decision, Ong recapped that the lower court had used as its barometer a test of six factors that had precedent in the case Donovan v. DialAmerica Marketing. 

Many of those tests are similar to other contractor versus employee tests used to settle disputes, such as the Borello test that was superseded in California by the ABC test in the Dynamex decision, which led to AB5. The various “prongs” of the sextet of standards include the question of control over the job, the degree of skill, the “permanence” of the relationship, the ability of the worker to profit from their efforts and the worker’s investment in the equipment needed to perform the job.

The six-pronged test, according to attorney Mark D. Eastburn of Eastburn & Gray, does not have one or two tests that are “dispositive.” Eastburn, in a commentary on the 3rd Circuit’s decision published last year, described dispositive as being primary and having the ability to cancel out other factors, where failure or success on one or two of the six decides the case.

However, he wrote that the lower court had found that a review of the six tests resulted in four of the standards favoring the definition of the Uber drivers as independent contractors and two of them as employees. The lower court decision, handed down via summary judgment, was that they were independent contractors. 

“On appeal, the (3rd Circuit) Court held that the question of which DialAmerica factors favor employee status is a question of fact that should go to the fact finder,” Eastburn said. Ong said the fact finder would likely be a jury. 

“The court identified a number of disputed facts as to whether Uber retains the right to control the plaintiff’s work pursuant to the first DialAmerica factor and whether the opportunity for profit or loss depends on managerial skill under the second DialAmerica factor,” Eastburn said of the circuit court decision. “Since a reasonable fact finder could rule in the plaintiff’s favor as to at least some of the six factors, the court held that the district court’s grant of summary judgment was inappropriate.”

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