Uber Drivers’ Time Spent “On Call” May Be Compensable Under FLSA

Lev Craig

Last week, on September 13, 2017, the U.S. District Court for the Eastern District of Pennsylvania denied Uber’s motion for partial summary judgment in Razak v. Uber Technologies, Inc. This decision allows a putative class of Philadelphia-based Uber drivers to move forward with claims against Uber for failing to compensate them for “on-call” time they spent logged into the Uber app, but not driving customers.

The Fair Labor Standards Act (FLSA) requires employers to compensate employees for all hours worked, including on-call time: hours worked where “the employee is required to remain on the employer’s premises, or […] although not required to remain on the employer’s premises, finds his time on call away from the employer’s premises is so restricted that it interferes with personal pursuits.” The recent rise of gig economy work— individual projects and tasks picked up at a worker’s discretion, often using apps like Uber and TaskRabbit—has presented a challenge to the existing model of on-call time, as courts are asked to consider what constitutes compensable on-call time for workers who may never report to a central place of employment or who are, at least to some degree, able to work whenever they choose.

In Razak, a group of Uber drivers alleged that their time spent logged into the Uber driver app and waiting for ride requests, but not actually driving customers, qualified as on-call time under the FLSA and that Uber’s failure to compensate them for such time had led to minimum wage and overtime violations. Uber moved to dismiss the drivers’ complaint; the court denied Uber’s motion to dismiss and ordered expedited discovery on the issue of whether the drivers’ time spent online qualified as compensable on-call time under the FLSA. After the parties completed expedited discovery, Uber moved for partial summary judgment. The court denied this motion as well, determining that it could not find that this on-call time was not compensable under the FLSA.

In denying Uber’s motion, the court looked to Department of Labor regulations on on-call time, as well as case law from other jurisdictions involving similar claims brought by other Uber drivers. The court identified the essential question here as the extent to which drivers could conduct personal business while online and logged into the Uber app. The court sought guidance from a similar case brought by a delivery driver for the food ordering app GrubHub, where the court allowed the plaintiff to proceed on his claims that his time spent logged into the GrubHub app was on-call time and therefore compensable under the FLSA.

The court pointed to four undisputed facts in support of its holding that prevented it from finding that the drivers’ time was not on-call time. First, Uber policy allows drivers a maximum of 15 seconds to accept after receiving a trip request from a rider; otherwise, the request will be considered rejected and will be automatically passed to another driver. The court found that this policy “may reasonably be considered a requirement that drivers are required by Uber to be tethered to their phones” while signed on, as drivers must effectively be constantly checking their phones in order to receive work assignments.

Second, the Uber app automatically switches a driver’s status from “online” to “offline” if a driver does not accept three trip requests in a row. Once a driver’s status switches to “offline,” the driver stops receiving ride requests from customers. The court determined that this “could reasonably be considered a severe restriction on [drivers’] ability to engage in personal activities,” as “drivers must constantly engage with the Uber App” in order to be eligible for work.

Third, when determining whether to accept a ride request, an Uber driver cannot see the customer’s destination. This means that the driver cannot know a rider’s destination until the trip begins and accordingly have “no knowledge whether it will be a short ride or very long – which affects driver compensation and may also restrict personal activities.”

Finally, Uber imposes physical restrictions on drivers in certain locations—for example, at the Philadelphia airport, Uber drivers are required to remain in a specific parking lot in order to receive and accept ride requests. According to the court, this type of restriction could fall under the more traditional definition of on-call time, as being required to remain in a specific area in order to work could, “for obvious reasons, be considered a literal restriction on drivers’ physical freedoms to pursue personal activities.” As a result, the court denied Uber’s motion, and the drivers’ claims will proceed.

If your employer has violated your rights under wage-and-hour laws, including failing to fairly compensate you for all hours worked, contact The Harman Firm, LLP.