Law360 (April 1, 2020, 8:17 PM EDT) -- Uber drivers asked a California federal judge at a call-in hearing Wednesday for an emergency order requiring Uber to classify drivers as employees, arguing misclassifying them as independent contractors — with no paid sick leave — may cause infected drivers to keep working, exacerbating the spread of COVID-19.
Counsel for the drivers, Shannon Liss-Riordan of Lichten & Liss-Riordan PC, told U.S. District Judge Edward Chen that Uber's recently rolled-out COVID-19 sick leave benefit for drivers are more stringent than the protections afforded to employees under the California labor code, as it requires documentation of a COVID-19 diagnosis from a physician or a personal order to quarantine.
"There is a substantial risk to the public at large," said Liss-Riordan, representing drivers Thomas Colopy, Spencer Verhines and Christopher James.
Without the sick pay mandated for employees under California law, many Uber drivers in the state who live "hand to mouth, day to day" and who aren't able to obtain a doctor's note "will continue working" despite exhibiting COVID-19 symptoms, causing irreparable harm to themselves and the public, Liss-Riordan said.
Even for those drivers who do have reliable access to health care, doctors' offices are overwhelmed by the pandemic, making it difficult to get a timely doctor's note, Liss-Riordan said.
But Uber's counsel, Theane Evangelis of Gibson Dunn & Crutcher LLP, urged the judge not to issue the emergency order.
Evangelis argued that Uber's COVID-19 sick pay policy — giving drivers up to 14 paid days off — in conjunction with the federal government's newly adopted Families First Coronavirus Response Act and CARES Act does more for drivers than California state law, which provides employees with three paid days of sick leave without requiring documentation.
Evangelis said Uber has already paid out 1,400 paid sick leave claims to drivers nationwide, at about $900 per claim, since the pandemic began.
Uber drivers will be harmed if they are classified as employees under California law, Evangelis told the judge, arguing the drivers risk being disqualified from the new federal relief packages that include benefits for independent contractors impacted by the pandemic.
Evangelis said California's sick leave law would not put drivers who need help right now in a better position.
But Liss-Riordan told Judge Chen that Uber is putting up a "smoke screen" and argued classifying drivers as employees doesn't mean drivers can't also qualify for federal benefits as independent contractors.
Judge Chen told the parties he wasn't sure whether a preliminary injunction would be appropriate prior to class certification in the case, saying it didn't appear that extraordinary harm would result without an emergency injunction and expressed concern that issuing an injunction could have a detrimental effect.
"If people lose benefits under [the] Families First and CARES Act, that's something that needs to be considered," Judge Chen said.
"There will be harm," Uber's counsel told the judge.
But the drivers' counsel disagreed, saying getting three extra days of sick pay under California law could vastly impact the health of drivers and the health of the public.
"This is an emergency," Liss-Riordan said, arguing that "right now, those three days could be critical for people's lives."
Judge Chen commented on Uber's new COVID-19 paid sick leave policy, noting that "getting a doctor's note may be problematic for folks" and suggesting that Uber consider a self-certification process for those who can't gain access to a doctor.
"It's really a documentation question that divides the parties at this point," the judge said.
Judge Chen said he would take the drivers' emergency motion for a preliminary injunction under submission, but instructed the parties to try to come up with an interim, pandemic-specific policy that would allow drivers to take paid sick leave without documentation from a physician or a personal order to quarantine.
"Wouldn't that be a practical solution?" the judge commented.
He gave the parties until Friday to try to reach an interim, pandemic-specific policy.
"Why not see if you can come up with some adjustment that would expand access for the good of public health?" the judge asked the parties.
In December, Judge Chen declined to issue a public injunction that would have forced the ride-hailing giant to immediately reclassify its drivers as employees.
Judge Chen said during the hearing Wednesday that he intends to hold a hearing in the coming weeks on an emergency motion for preliminary injunction in another Uber employee status case recently transferred from Massachusetts to the Northern District of California.
The Massachusetts federal judge overseeing that case ruled last month that Uber and Lyft drivers would not gain their coveted employee status through a preliminary injunction, concluding the drivers didn't face an "immediate threat of irreparable harm" from being classified as independent contractors, despite the pandemic.
Uber declined Law360's request for comment, while counsel for the drivers did not immediately respond to Law360's requests for comment Wednesday.
Verhines, Colopy and James are represented by Shannon Liss-Riordan and Anne R. Kramer of Lichten & Liss-Riordan PC.
Uber is represented by Theane Evangelis, Heather Richardson and Blaine Evanson of Gibson Dunn & Crutcher LLP.
The cases are Verhines v. Uber Technologies Inc., case number 3:20-cv-01886, and Colopy et al v. Uber Technologies Inc., case number 3:19-cv-06462, both in the U.S. District Court for the Northern District of California.
--Editing by Philip Shea.
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