SAN FRANCISCO (CN) — At a Wednesday hearing on an emergency motion to make Uber give drivers sick pay, a federal judge ordered the ride-hail giant to start negotiating an expansion of its financial-aid program in response to Covid-19.
“I’ll order the parties to conduct settlement discussions on this very specific question on access for drivers to 246-type benefits during the interim period during the pandemic crisis,” said U.S. District Judge Edward Chen, referring to Section 246 of the California labor code, which covers sick pay.
Uber driver Spencer Verhines brought the emergency motion for a preliminary injunction on March 19, claiming Uber’s misclassification of California Uber drivers as independent contractors has enabled the company to avoid providing mandated sick pay to drivers.
At a telephonic hearing Wednesday, Verhines’ lawyer Shannon Liss-Riordan said Uber’s alleged flouting of the law directly threatens public health.
“If an Uber driver gets sick and continues working because they can’t afford to stay home, that’s harm to that driver and harm to the public because they’re risking spreading the disease to the public,” Liss-Riordan said.
Uber says an injunction is unnecessary because it already launched a financial aid program for drivers affected by Covid-19. The program provides $400 to $1700 to drivers for two weeks of time off, depending on their average daily earnings for the last six months. To qualify for the program, drivers must submit documentation of a Covid-19 diagnosis or quarantine order from a licensed medical professional or public health authority.
Uber insists its program is more generous than the minimum 24 hours, or three days, of paid sick leave required under California law for employees that have worked at least 30 days for an employer.
While the plan may be more generous, Liss-Riordan argued it also comes with more restrictions. Getting a doctor’s note or letter from a public health agency can pose major challenges during a public health crisis, she said.
“There are a lot of Uber drivers who don’t even have health care or a doctor to turn to for telemedicine,” she said. “A lot of doctors are overwhelmed or are limiting access to patients to deal with the most extreme emergencies.”
High deductibles can also create barriers to obtaining a doctor’s note, she added.
After the emergency motion for an injunction was filed, Uber driver Christopher James joined the lawsuit as a plaintiff. According to his sworn declaration, James was greeted by federal officials in hazmat suits when he returned to San Francisco International Airport from a trip to London on March 20.
Despite submitting his boarding pass and a written warning from the U.S. Centers for Disease Control and Prevention (CDC) ordering him to self-quarantine for 14 days, Uber denied his request for financial assistance through its program.
After James joined the lawsuit and submitted his declaration, Uber reversed course and granted his request, paying him $814.80 for two weeks of time off.
According to Uber, it has paid more than 1,400 claims to U.S. drivers through its program in less than three weeks.
Uber also maintains that if drivers are classified as employees rather than contractors, they will lose out on benefits from the recently passed Families First Coronavirus Response Act, which provides self-employed contractors tax credits of up to $511 per day for 10 days or up to $200 per day for 50 days if leave is taken to care for a minor child.
Uber attorney Theane Evangelis argued the company’s financial aid program and relief available through new federal programs moots the need for an injunction in this case.
“This financial distress the plaintiff is alleging has been really eliminated at this point through the federal benefits and Uber’s policy and the payment he received,” Evangelis said.
Liss-Riordan disputed that drivers would lose federal benefits if they are classified as employees. Drivers could be classified as employees under California law but maintain their status as independent contractors under federal law, she argued.
Judge Chen did not appear overly receptive to that argument.
“There is a risk to some court order that either expressly or implicitly holds that they are employees of Uber that they could lose out on benefits,” Chen said.
As he previously stated in a ruling in a related case this past December, Chen said he is reluctant to grant a preliminary injunction at this stage because the Ninth Circuit strongly disfavors granting class-wide injunctions before a class is certified.
Chen also spent much of the hearing focusing on how Uber verifies Covid-19 symptoms or the need for self-quarantine for its financial aid program. The judge asked Evangelis if the company could work out an arrangement that would permit drivers to self-certify the presence of Covid-19 symptoms or infection risk.
“It’s really a documentation problem that divides the parties at this point,” Chen said. “I’m wondering if it is more productive if you can work that out. Call it an interim policy. Call it a pandemic policy.”
Evangelis replied that Uber is doing all it can to strike “the right balance” in addressing this complex and challenging situation. However, she implied that Uber would not be especially receptive to letting drivers self-certify symptoms, especially since case law does not support granting an injunction at this stage that would force the company to change its tune.
“Why not take additional steps that would transcend this legal issue to help drivers who are symptomatic,” Chen asked.
“I’m sure Uber does not want symptomatic drivers out there,” Chen added. “I hope not.”
“No, your honor. None of us do,” Evangelis replied.
Chen ordered both sides to start settlement talks immediately on a new verification process for Uber’s financial assistance program. He asked both parties to submit a written update on their negotiations by Friday.
The judge also said he will consolidate this case with a related class action, Colopy v. Uber, that was filed last year. Lawyers expect this case will also be consolidated with another class action against Uber that was just transferred from the District of Massachusetts on Tuesday.
Chen agreed to expedite the plaintiffs’ motion for a preliminary injunction and Uber’s motion to compel arbitration in that case. He ordered Uber to file its opposition to the injunction and motion to compel arbitration by Monday. A telephonic hearing on those motions is scheduled for April 22 at 10 a.m.