WILL UBER SOON BE DRIVING COUNTRY ROADS?
If you’ve been following my series on the “uberization” of the workplace, you’ve probably cued in to the fact that I’m a huge fan of the services Uber provides. I love the on-demand economy. I used VRBO for my honeymoon. I ubered around beautiful Asheville, North Carolina for my birthday (a 15-minute ride cost me $15 – seriously!). And, now the West Virginia Legislature has made my little heart go pitty-pat by passing a law that will let Uber help me travel some country roads.
Effective July 1, 2016, “transportation network companies” (feel free to think Uber – I know I do) may use technology to link drivers and riders in our great State. The transportation network company (or “TNC”) will have to get a permit from the Division of Motor Vehicles to operate in West Virginia. The TNC must provide proof that it has an agent for service of process in this State (which would enable it to be sued if appropriate). In addition to an annual $1,000.00 permit fee, the TNC will also have to provide: (1) proof of insurance, (2) a copy of its zero tolerance for drugs and alcohol policy, (3) a copy of its policy prohibiting solicitation or street hails for rides, and (4) a copy of its nondiscrimination policy with respect to riders.
The Legislation puts several safety measures into place. In addition to the zero tolerance policy and insurance coverage (by both the TNC and the driver), the TNC’s app must show the potential rider a picture of the driver and his or her license plate number. The TNC must conduct, and all drivers must pass, a background check that includes:
- A search of a multi-state, multi-jurisdictional criminal records locator or similar nationwide database with validation
- A National Sex Offender Registry search
- A driving history research report.
And, drum roll, the West Virginia Legislature has addressed the legal relationship between the TNC and the driver head on by setting forth five requirements that, when met, establish an independent contractor/employer relationship.
- The TNC does not prescribe the specific hours of work for the driver, i.e., when he or she must be logged in to its digital network.
- The TNC does not prohibit the driver from using other TNC networks, i.e., the driver can use other apps.
- The TNC does not assign the driver a particular territory.
- The TNC does not prohibit the driver from holding other employment or conducting another business.
- The TNC and the driver agree in writing that the driver is an independent contractor of the TNC.
In my view, this test reinforces the mainstay of the independent contractor analysis in West Virginia: CONTROL is the key factor. The Wage and Hour Division of the U.S. Department of Labor (“DOL”) announced its disagreement with the significance that should be accorded the control factor in an Administrator’s Interpretation issued last year (for more information see the fourth installment of my uberization series – link here). If our new law is any indication, the DOL is going to be receiving a lot of push back from the states where “control” reigns supreme. In the meantime, I hope that Uber accepts our invitation to do business and take me home country roads.