       Third District Court of Appeal
                               State of Florida

                          Opinion filed February 1, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D15-2758
                      Lower Tribunal No. 0026283468-02
                             ________________


                             Darrin E. McGillis,
                                    Appellant,

                                        vs.

   Department of Economic Opportunity; and Rasier LLC, d/b/a
                           UBER,
                                    Appellees.


     An Appeal from the Department of Economic Opportunity.

     Darrin E. McGillis, in proper person.

        Shutts & Bowen LLP, and Daniel E. Nordby (Tallahassee), and Andrew E.
Schwartz (Fort Lauderdale), for appellee Department of Economic Opportunity;
Littler Mendelson, P.C., and Courtney B. Wilson, for appellee Rasier, LLC.


Before LAGOA, SALTER, and LOGUE, JJ.

     LOGUE, J.
      Darrin E. McGillis, a former Uber driver, appeals the decision of the Florida

Department of Economic Opportunity concluding that an Uber driver is not an

employee for the purpose of      reemployment assistance.    Because the parties’

contract explicitly provides that an Uber driver is not an employee and the nature

of the parties’ relationship was consistent with this classification, we agree. We

therefore   affirm   the   Department’s   order   denying   McGillis’   claim   for

reemployment assistance.

                     FACTS AND PROCEDURAL HISTORY

      Uber is a technology platform that connects drivers with paying customers

seeking transportation services. McGillis served as an Uber driver until Uber

revoked his access to the technology based on alleged violations of Uber’s user

privacy policy. McGillis then filed a claim for reemployment assistance against

Rasier LLC, d/b/a Uber.1 The threshold issue raised by McGillis’ claim was

whether he provided service to Uber as an employee entitled to reemployment

assistance under section 443.1216, Florida Statutes (2015), or whether he served

Uber as an independent contractor.

      The Department of Revenue initially found that McGillis served as an Uber

employee. Uber contested this determination, and an evidentiary hearing was held


1 Rasier LLC is a wholly owned subsidiary of Uber Technologies, Inc., and holds a
license to administer Uber Technologies’ software in Florida. For purposes of
simplicity, we refer to both Uber Technologies and Rasier as “Uber.”

                                          2
before the Department of Economic Opportunity. Following the hearing, a special

deputy recommended a reversal of the Department’s order. The special deputy

found McGillis had served Uber as an independent contractor and was therefore

not entitled to reemployment assistance.         McGillis filed exceptions to the

recommended order.      In a detailed final order, the executive director of the

Department of Economic Opportunity adopted the special deputy’s recommended

order and overruled McGillis’ exceptions. McGillis filed this timely appeal.

      At the hearing before the Department, witnesses explained in detail how

Uber’s transportation network software works.        The software consists of two

applications that are generally accessible on smartphones: a “user application,”

used by individuals seeking transportation services, and a “driver application,”

used by individuals willing to provide transportation services.2 Drivers receive a

percentage of the fare charged to the passengers,3 and Uber processes payments to

drivers weekly by direct deposit.

      Uber supplies additional insurance coverage for commercial operation of a

vehicle, but it does not provide other benefits such as medical insurance, vacation


2 If a prospective driver does not own a smartphone, Uber may provide one to the
driver with the driver application installed, but the driver is responsible for paying
a deposit and a weekly fee.
3 The fare is based on an algorithm developed by Uber. Variables include a
minimum base fare, charges for mileage and time spent in transit, and a multiplier
based on supply and demand in a particular location at a particular time.

                                          3
pay, or retirement pay. At the end of each year, Uber sends each driver a “Form

1099”—an Internal Revenue Service form used to report payments to independent

contractors—setting out the amounts paid to the driver for the year.

      A prospective Uber driver must agree to the terms and conditions of Uber’s

“Software Sublicense and Online Agreement.” This contract specifies that the

driver is an independent contractor and not an employee. It further explains that the

driver, as an independent contractor, is not entitled to unemployment benefits:

      This Agreement is between two co-equal, independent business
      enterprises that are separately owned and operated. The Parties intend
      this Agreement to create the relationship of principal and independent
      contractor and not that of employer and employee. The Parties are not
      employees, agents, joint venturers or partners of each other for any
      purpose. As an independent contractor, you recognize that you are not
      entitled to unemployment benefits following termination of the
      Parties’ relationship.

The contract further specifies that each trip request accepted is considered a

“separate contractual engagement,” that drivers are “entitled to accept, reject, and

select” requests as they see fit, and that drivers have no obligation to accept any

request.4   Drivers are free to set their own schedules and to determine what

locations they will serve.




4 Uber may deactivate the driver’s account if the driver’s acceptance rate is
persistently below a specified level or after 180 consecutive days of inactivity. But
even if deactivated, the driver may request reactivation of the account and return to
using the driver application.

                                         4
      A prospective driver is subject to a background check and must provide

Uber with information about the driver’s vehicle, registration, license, and

insurance. Drivers are responsible for supplying, maintaining, and fueling their

own vehicles. Uber does not require drivers to display Uber signage in their

vehicles, nor does Uber control the drivers’ attire. Drivers are free to switch

between using Uber’s driver application and the application of a competitor, such

as Lyft.

      Uber does not directly evaluate or supervise its drivers. Instead, passengers

rate their drivers on a scale ranging from one to five stars. If a driver’s overall

rating falls below the level set by the region’s general manager and no

improvement is shown, Uber may deactivate the driver’s account.5

      During his time as an Uber driver, McGillis experimented with when and

where to use the driver application. He spent his own time and money investigating

the most profitable times and locations. Uber did not reimburse him for any costs

related to this market research, such as the cost of gas. And although McGillis left

his previous job to use Uber’s driver application, Uber did not require him to do

so. Nor did Uber prohibit him from receiving ride requests from Lyft’s driver

application. In fact, McGillis switched between using Uber and Lyft at his

discretion.

5Drivers also rate passengers on a similar scale. This score can affect a passenger’s
average rating, which drivers can view before accepting or rejecting a trip request.

                                         5
      Based on the testimony presented at the hearing, the Department’s executive

director concluded that Uber drivers were not employees. It noted that the drivers

exercise a level of free agency and control over their work different from that of

the traditional master-and-servant model indicative of an employer-employee

relationship:

      The agreement between drivers and Uber specifies that the
      relationship is one of independent contractor, and the actual course of
      dealing confirms that characterization. Drivers have significant
      control over the details of their work. Drivers use their own vehicles
      and choose when, if ever, to provide services through Uber’s
      software. Drivers decide where to work. Drivers decide which
      customers to serve. Drivers have control over many details of the
      customer experience. Drivers may provide services through, or work
      for, competing platforms or other companies when not using the Uber
      application. On these facts, it appears that Uber operates not as
      employer, but as a middleman or broker for transportation services.

Rasier, LLC v. Fla. Dept. Econ. Opportunity, 0026 2834 68-02 McGillis (Fla.

Dept. Econ. Opp. Dec. 3, 2015) at 2.

                                    ANALYSIS

      At the outset, we approve the executive director’s observation regarding the

changes rippling through our society as a result of the technology at issue:

      The internet and the smartphones that can now access it are
      transformative tools, and creative entrepreneurs are finding new uses
      for them every day. People are being connected in ways undreamed
      of just a decade ago. This is as true for business relationships (through
      software like Uber) as it is for social relationships (through software
      like Facebook). Many more people have access to, and voice in,
      markets that may once have been closed or restricted. Just as many
      more people can now publish their own thoughts to a vast audience,


                                          6
      many more people can now offer their services or hawk their wares to
      a vast consumer base.

Id. at 19. In this case, we must decide whether a multi-faceted product of new

technology should be fixed into either the old square hole or the old round hole of

existing legal categories, when neither is a perfect fit.

      The narrow issue on appeal is whether McGillis performed transportation

services using Uber’s software application as an “employee” within the meaning of

Chapter 443. This determination is based on “the usual common-law rules

applicable    in    determining      the    employer-employee     relationship.”   §

443.1216(1)(a)(2). “The statute does not refer to other rules or factors for

determining the employment relationship.” Brayshaw v. Agency for Work Force

Innovation, 58 So. 3d 301, 302 (Fla. 1st DCA 2011). Accordingly, the Department

was “limited to applying only Florida common law in determining the nature of the

employment relationship.” Id.6


6 An administrative agency’s interpretation of a statute it is charged with enforcing
is generally entitled to great deference. Donato v. Am. Tel. & Tel. Co., 767 So. 2d
1146, 1153 (Fla. 2000); Metro. Dade Cty. v. P.J. Birds, Inc., 654 So. 2d 170, 175
(Fla. 3d DCA 1995). Under this doctrine, courts defer to the agency because “the
interpretation may have been based on a history that is best known by the agency
or special expertise the agency has in applying the statute.” Brown v. State,
Comm’n on Ethics, 969 So. 2d 553, 557 (Fla. 1st DCA 2007). Deference is not
required, however, if the agency’s interpretation conflicts with the statute’s plain
meaning or requires no special agency expertise. Arza v. Fla. Elections Comm’n,
907 So. 2d 604, 606 (Fla. 3d DCA 2005).




                                           7
      To determine whether an individual is an employee or independent

contractor, Florida law requires courts to initially look to the parties’ agreement.

Keith v. News & Sun Sentinel Co., 667 So. 2d 167, 171 (Fla. 1995). If a provision

disclaims an employer-employee relationship in favor of independent contractor

status, courts honor that provision “unless other provisions of the agreement, or the

parties’ actual practice, demonstrate that it is not a valid indicator of status.” Id. If

the parties’ actual practice contradicts their written agreement, the actual practice

controls. Id.

      Indeed, independent contractor or employee status “depends not on the

statements of the parties but upon all the circumstances of their dealings with each

other.” Cantor v. Cochran, 184 So. 2d 173, 174 (Fla. 1966). So to determine

whether the parties practice an independent contractor or employee-servant

relationship, Florida courts consider several factors outlined in the Restatement

(Second) of Agency § 220. Id. at 174-75. The Restatement lists the following ten

factors:

                (a) the extent of control which, by the agreement, the
                    master may exercise over the details of the work;

                (b) whether or not the one employed is engaged in a
                    distinct occupation or business;

                (c) the kind of occupation, with reference to whether, in
                    the locality, the work is usually done under the
                    direction of the employer or by a specialist without
                    supervision;


                                           8
            (d) the skill required in the particular occupation;

            (e) whether the employer or the workman supplies the
                instrumentalities, tools, and the place of work for the
                person doing the work;

            (f) the length of time for which the person is employed;

            (g) the method of payment, whether by the time or by the
                job;

            (h) whether or not the work is a part of the regular
                business of the employer;

            (i) whether or not the parties believe they are creating
                the relation of master and servant; and

            (j) whether the principal is or is not in business.

      In examining these factors, it is not uncommon for a court to find that not

“every element [of the Restatement] is so clearly present as to establish beyond

argument that the arrangement between [the parties] is one of independent

contractorship” or employer-employee. Miami Herald Publ’g Co. v. Kendall, 88

So. 2d 276 (Fla. 1956). But among these ten factors, the “extent of control” is

recognized by Florida courts as the most important factor in determining whether a

person is an employee or independent contractor. Verchick v. Hecht Invs., Ltd.,

924 So. 2d 944, 946 (Fla. 3d DCA 2006) (“It is well-established that the main test

in determining the existence of an employer-employee relationship is whether the

employer has direction and control over the employee.”). “Control” refers to “the



                                         9
right to direct what shall be done and how and when it shall be done.” Herman v.

Roche, 533 So. 2d 824, 825 (Fla. 1st DCA 1988).

      Of course, both employees and independent contractors “are subject to some

control by the person or entity hiring them. The extent of control exercised over

the details of the work turns on whether the control is focused on simply the result

to be obtained or extends to the means to be employed.” Harper ex rel. Daley v.

Toler, 884 So. 2d 1124, 1131 (Fla. 2d DCA 2004) (citation and quotations

omitted). “[I]f control is confined to results only, there is generally an independent

contractor relationship . . . .” 4139 Mgmt. Inc. v. Dep’t of Labor & Emp’t, 763 So.

2d 514, 517 (Fla. 5th DCA 2000). By contrast, “if control is extended to the means

used to achieve the results, there is generally an employer-employee relationship.”

Id.

      For example, in A Nu Transfer, Inc. v. Department of Labor & Employment

Security Division of Employment Security, 427 So. 2d 305 (Fla. 3d DCA 1983),

this court held that an owner-operator truck driver for an inland carrier was an

independent contractor because drivers provided their own vehicles, were not

required to work a specific number of hours, and were permitted to work for a

competitor company. And in Jean M. Light Interviewing Services, Inc. v. State

Department of Commerce, 254 So. 2d 411 (Fla. 3d DCA 1971), this court held that

interviewers for market research were independent contractors because they were



                                         10
“free” to refuse a job, to work for competitors, and to complete an assignment “at

such time and in such matter, or fashion, as the interviewers might desire.” Id. at

412-13.

      Similarly, in 4139 Management Inc., 763 So. 2d at 518, the Fifth District

held that condominium housekeepers were independent contractors because they

controlled the means to completing a job, were free to refuse a job, and could

simultaneously “work for others.” Id. at 518. See also Sarasota Cnty. Chamber of

Commerce v. State Dep’t of Labor & Emp’t Sec., Div. of Unemployment Comp.,

463 So. 2d 461, 462-63 (Fla. 2d DCA 1985) (concluding salespersons were

independent contractors because there was “no meaningful supervision over the

salespersons’ work”; salespersons “set their own schedules and contact such

prospects as they please,” “furnish and pay for their own transportation,” “are free

to hire others at their own expense,” and “dress in whatever fashion they desire”);

VIP Tours of Orlando, Inc. v. State Dep’t of Labor & Emp’t Sec., 449 So. 2d 1307,

1310 (Fla. 5th DCA 1984) (concluding tour guides were independent contractors

because they were free to reject an assignment, free to determine the nature of each

tour, and “free to work for other tour services”; the tour company “had no right of

control over the tour guides other than to require them to show up at a particular

place at a particular time wearing the [company] uniform and to travel in

[company] transportation”).



                                        11
        We agree with the Department’s conclusion that Uber drivers like McGillis

are not employees for purposes of reemployment assistance. Here, the parties’

agreement unequivocally disclaims an employer-employee relationship. And the

parties’ actual practice reflects the written contract. As the Department here found,

“the central issue is the act of being available to accept requests” and “[t]his

control is entirely in the driver’s hands.” Drivers supply their own vehicles—the

most essential equipment for the work—and control whether, when, where, with

whom, and how to accept and perform trip requests. Drivers are permitted to work

at their own discretion, and Uber provides no direct supervision. Further, Uber

does not prohibit drivers from working for its direct competitors. Accordingly, we

agree with the Department’s assessment that,

        [a]s a matter of common sense, it is hard to imagine many employers
        who would grant this level of autonomy to employees permitting work
        whenever the employee has a whim to work, demanding no particular
        work be done at all even if customers will go unserved, permitting just
        about any manner of customer interaction, permitting drivers to offer
        their own unfettered assessments of customers, engaging in no direct
        supervision, requiring only the most minimal conformity in the basic
        instrumentality of the job (the car), and permitting work for direct
        competitors.

Rasier, LLC v. Fla. Dept. Econ. Opportunity, 0026 2834 68-02 McGillis

(Fla.

Dept. Econ. Opp. Dec. 3, 2015) at 11.




                                          12
      Additional facts of this case supports this conclusion. For example, Uber

sends each driver a Form 1099—an IRS form used to report payments to

independent contractors. See 4139 Mgmt., 763 So. 2d at 518 (“At the end of the

year, the Association gave the maids a Form 1099 ‘Miscellaneous Income’ for the

maids to report their income.”). And Uber does not provide fringe benefits, such as

medical insurance, vacation pay, or retirement pay. See A Nu Transfer, 427 So. 2d

at 306 (“[The truck drivers] do not accrue and are not paid for sick leave or

vacation time.”); 4139 Mgmt., 763 So. 2d at 518 (“The maids did not receive any

benefits such as vacation, sick leave or insurance . . . .”); Dep’t of Health & Rehab.

Servs. v. Dep’t of Labor & Emp’t Sec., 472 So. 2d 1284, 1287 (Fla. 1st DCA

1985) (noting that the independent contractor housekeeper “did not receive fringe

benefits, such as insurance, as part of her compensation . . . .”); La Grande v. B &

L Servs., Inc., 432 So. 2d 1364, 1367 (Fla. 1st DCA 1983) (“[The taxicab

company] provided [the taxicab driver] no fringe benefits of the kind usually found

in an employment relationship.”).

      The fact that Uber may deactivate a driver’s account under certain

circumstances does not mandate a contrary conclusion. See, e.g., La Grande, 432

So. 2d at 1368 (“[W]e recognize that the ability to terminate such a relationship at

will without incurring liability is an attribute more characteristic of an employment

situation than that of independent contractor. However, although a factor to be



                                         13
considered, it is by no means conclusive on the issue of independent contractor

versus employee status.”). And even though Uber’s principal business is to provide

transportation, this factor alone is not dispositive. See Jean M. Light Interviewing

Servs., 254 So. 2d at 412-13 (holding interviewers were not employees even

though interviewing was the principal business of the interviewing service).

                                 CONCLUSION

      Uber and McGillis contractually agreed that McGillis’ work did not make

him an employee. A review of the parties’ working relationship confirms this

understanding. Due in large part to the transformative nature of the internet and

smartphones, Uber drivers like McGillis decide whether, when, where, with whom,

and how to provide rides using Uber’s computer programs. This level of free

agency is incompatible with the control to which a traditional employee is subject.

Accordingly, we affirm the final order of the executive director of the Department

of Economic Opportunity concluding that Uber drivers are not entitled to

reemployment assistance under section 443.1216 and denying McGillis’ claim for

reemployment assistance.

      Affirmed.




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