Uber Duel This Friday

Prof. Wanjiru Njoya, Exeter University (U.K.), and I will be offering different perspectives on the uberization of work. The forum: A Conference called “The Changing Nature of Work and the Economics of Employment in the 21st Century,” hosted by George Mason University’s Scalia Law School in Fairfax, Virginia. Lawyers from 20-30 state attorney general offices are registered for the conference.

Prof. Njoya makes this argument: “Thus the paper is critical of the dominant perspectives of fairness and social justice underpinning the modern legal framework to the extent that they fail to recognize and appreciate the significance of economic liberty in human flourishing and substantive wellbeing, in particular ‘freedom of economic contract’ and the ‘freedoms of working’ including the ability to choose one’s own terms and conditions of work.”

Many Uber drivers would agree with Prof. Njoya, as would other “gig workers.”

I’ll counter by challenging Prof. Njoya’s “freedom” thesis. I’ll draw a parallel between exploitation of strippers and exploitation of Uber drivers. Here is a summary of the “stripper argument” I will present:

Sexual dancing uses a business model that heavily exploits performers. The work experience of Gabrielle Doe, a Ritz Club dancer, demonstrates this business model. Doe worked under a pseudonym because the club’s atmosphere degraded women. Other clubs use dancer vulnerabilities and fear to discourage challenges to conditions of work. Doe worked about fifty-five hours each week, but was never paid minimum wage or overtime. However, Ritz Club charged Doe a fee to come to work, another fee for music, another fee for DJ services, another fee for backstage access, and another fee for VIP access. The club levied fines when Doe was late to work, and another fine when she appeared late on stage. In a typical night, Doe paid the club $75 or more in fees and fines. In her lawsuit for unpaid wages, she alleged that the club’s pay system sometimes resulted in negative wages. Clubs usually avoid paying most workers—and paradoxically, require dancers to pay their co-workers. To illustrate, a male DJ sued his club because he was not paid wages and relied on dancers to pay him tips. This practice is common.

Michael H. LeRoy, “Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy,” William & Mary Journal of Race, Gender, and Social Justice, Vol. 23 (2107), pp. 249-270, https://scholarship.law.wm.edu/wmjowl/vol23/iss2/5

I’ll then show a part of the Uber Arbitration Agreement that every driver must sign. My point is that like the strip club business model, the Uber model specifically provides for charging drivers, using the driver’s primary or backup credit card. Under certain conditions, this is known as wage theft.

It says, in part: “You understand that use of the Services may result in charges to you for the services or goods you receive ("Charges"). Uber will receive and/or enable your payment of the applicable Charges for services or goods obtained through your use of the Services. Charges will be inclusive of applicable taxes where required by law. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, municipal tolls, airport surcharges or processing fees for split payments.

All Charges and payments will be enabled by Uber using the preferred payment method designated in your Account, after which you will receive a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Uber may use a secondary payment method in your Account, if available. Charges paid by you are final and non-refundable, unless otherwise determined by Uber.”

That’s freedom? Really?

I’ll close with this quote from the Nevada Supreme Court, which ruled that strippers are employees, not independent contractors (and therefore entitled to minimum wages and overtime, plus limits on “chargebacks” to the club):

Terry v. Sapphire Gentlemen’s Club, 336 P.3d 951, 959 (Nev. 2014) said it “is mindful that Sapphire’s supposed lack of control may actually reflect ‘a framework of false autonomy’ that gives performers ‘a coercive “choice” between accruing debt to the club or redrawing personal boundaries of consent and bodily integrity.’”