210 So.3d 220
Fla. Dist. Ct. App.2017Background
- Darrin McGillis, an Uber driver, filed for reemployment assistance after Uber revoked his access; the Department of Revenue initially found him an employee, but the Department of Economic Opportunity reversed.
- Drivers must accept Uber’s Software Sublicense and Online Agreement, which expressly classifies drivers as independent contractors and states they are not entitled to unemployment benefits.
- Uber’s platform: drivers use their own vehicles, set schedules, accept/reject trip requests, may work for competitors, receive weekly direct-deposit payments, and receive Form 1099s at year-end.
- Uber provides limited commercial insurance but no fringe benefits (health, vacation, retirement); drivers are not directly supervised—passenger ratings, not Uber managers, govern continued access.
- The Department’s executive director applied Florida common-law factors (Restatement §220) emphasizing the extent of control and concluded drivers are independent contractors; the appellate court affirmed.
Issues
| Issue | McGillis' Argument | Uber's Argument | Held |
|---|---|---|---|
| Whether McGillis was an "employee" under Fla. Stat. ch. 443 for reemployment assistance | McGillis: he performed transportation services for Uber and thus is an employee entitled to benefits | Uber: parties’ contract and actual practice show independent-contractor status; drivers control means, hours, equipment, and may work for others | Affirmed: drivers are independent contractors; no reemployment assistance entitlement |
| Whether the contractual disclaimer and parties’ practice can be overridden by common‑law factors | McGillis: actual practice may demonstrate an employer-employee relationship despite the contract | Uber: the contract disclaimer is consistent with how drivers actually work and is controlling absent contradictory practice | Held: contract honored; actual practice aligns with independent-contractor classification |
Key Cases Cited
- Brayshaw v. Agency for Work Force Innovation, 58 So. 3d 301 (Fla. 2011) (agency must apply Florida common-law rules to employment status)
- Keith v. News & Sun Sentinel Co., 667 So. 2d 167 (Fla. 1995) (party agreement disclaiming employment controlling unless contradicted by practice)
- Cantor v. Cochran, 184 So. 2d 173 (Fla. 1966) (status depends on totality of circumstances; Restatement §220 factors apply)
- Verchick v. Hecht Invs., Ltd., 924 So. 2d 944 (Fla. 3d DCA 2006) (extent of control is the primary factor)
- Herman v. Roche, 533 So. 2d 824 (Fla. 1st DCA 1988) (control means right to direct what, how, and when work is done)
- A Nu Transfer, Inc. v. Dep’t of Labor & Emp’t Sec., 427 So. 2d 305 (Fla. 3d DCA 1983) (owner-operator drivers found independent contractors where they supplied vehicles and worked for competitors)
- Jean M. Light Interviewing Servs., Inc. v. State Dep’t of Commerce, 254 So. 2d 411 (Fla. 3d DCA 1971) (interviewers were independent contractors free to decline work and determine methods)
- 4139 Mgmt., Inc. v. Dep’t of Labor & Emp’t, 763 So. 2d 514 (Fla. 5th DCA 2000) (housekeepers were independent contractors based on control of means and freedom to refuse jobs)
- Sarasota Cnty. Chamber of Commerce v. State Dep’t of Labor & Emp’t Sec., 463 So. 2d 461 (Fla. 2d DCA 1985) (salespersons independent where they set schedules, paid own expenses, and lacked meaningful supervision)
- VIP Tours of Orlando, Inc. v. State Dep’t of Labor & Emp’t Sec., 449 So. 2d 1307 (Fla. 5th DCA 1984) (tour guides independent contractors despite some company requirements)
- La Grande v. B & L Servs., Inc., 432 So. 2d 1364 (Fla. 1st DCA 1983) (taxicab driver not employee where employer provided no fringe benefits)
- Miami Herald Publ’g Co. v. Kendall, 88 So. 2d 276 (Fla. 1956) (not every Restatement factor must be present; totality controls)
- Donato v. Am. Tel. & Tel. Co., 767 So. 2d 1146 (Fla. 2000) (agency interpretations get deference when within expertise)