Uber – Relationship with Drivers

We live in a disruptive era, it is clearly visible that new technologies constantly arise in our daily lives and, even though they might be able to benefit in the long term, it is necessary to proceed with caution when analyzing the new consumer relations, the new contractual relations brought to live by those disruptive technologies, which have the power to basically transform the market of a specified good or service. Even though the lawmakers and judges are unable to keep up to every transformation and innovation, it is important that we can discuss situations where conflicts and lawsuits arise.
Our goal here is to state that, in a world of constant changes, the individual is still subject to any losses and damages to its property, when hiring a service or acquiring a certain good. We should, likewise, be able to maintain the consumer rights, protecting its interests. In this way we must argue who is to blame when we need to pay compensations, and in such cases Uber is the most outstanding app.
In Brazil, Uber first started operating in 2014 in the cities of Rio de Janeiro and São Paulo and  nowadays/today it operates approximately in 40 cities all over the country. The North region of Brazil was the last one in which it started operating, April 2017 – in the cities of Belém and Manaus.
The company arrival in Brazil, however, caused many controversies related to the fact that it provides a completely different kind of service in organizational terms. One of the questions, which is still present nowadays, is the competition between Uber and taxi cooperatives, already consolidated in the whole country, given their similarity related to the kind of service provided.  
The main debate related to this merit is the fact that Uber drivers do not have to pay the various standardization rates necessary to the regularization of a taxi, which leads taxi drivers to complain that there is an unfair competition between both kinds of transportation services. On the other hand, Uber representatives and drivers claim not having the various benefits assured to taxi drivers – such as tax-free when buying a new car and other kinds of discounts – what causes the operational costs and, consequently, the competition between both services legitimate.
Among other controversial issues concerning Uber’s performance in Brazil, the question which seems to generate more discussions is related to the legal nature of the relation established between the company and the drivers registered in the App.
Concerning this merit, Uber claims to be a clear example of sharing economy. According to the enterprise, there is no legal link between the company and the drivers registered in the App since it happens to be just an App in which the drivers manage their own activities and the drivers themselves are responsible for determining the number of hours they are going to work  in a day, the time, among other things. To sum up, Uber claims to be nothing else than an intermediary between the drivers and the clients, and that there is no employment relationship between the company and the drivers, which results in a lack of civil responsibility from the company for what its registered drivers do since they are freelancers.
There is, however, an important second argumentative chain in which the service provided by Uber characterizes it as a transportation company and that the drivers registered in the App would be, therefore, employees of the company. The consequence would be that there would be some sort of employment relationship between Uber and its drivers – now employees – which would lead to the need of adequacy of the service to many requirements related to this legal relationship, such as work permit signature, overtime payment, night shift premium, among others. According to these arguments, Uber would not be merely an intermediary between drivers and clients, but the employer of the drivers, causing the startup to be responsible for its employees during the job execution, as stated in articles 932, III, and 933 of the Brazilian Civil Code.
The Brazilian Jurisprudence also seems not to have yet found a pattern to be followed in regards to situations involving the nature of the relationship between Uber and the drivers. Decisions in favour of both the argumentative chains have been emerging recently, which illustrates the indecision of our Law enforcers in regards to this merit.
In February of this year, for example, the Labour Justice of Minas Gerais (Regional Labour Court of the 3rd Region – TRT3) held a trial that reverberated throughout the whole national territory. In the decision, it was established that there is, in fact, an employment relationship between Uber and its drivers, and it was determined that the company should sign the drivers’ work permits, in addition to paying them extra hours, night shift extras, fines determined by the Consolidation of the Labour Laws (CLT), severance payments for breach of contract without cause and restitution of the money spent with gas and the water and the candy offered to passengers.
Recently, however, the same Court revoked this decision, which Uber had appealed against. In the new decision, from May of 2017, it was determined that companies such as Uber “establish direct contact between consumers and providers [private drivers]”. With this, the TRT3 decided that an employment relationship between Uber and the drivers doesn’t exist, due to the possibility that the drivers willingly depart from service for months, only to get back later without any possible damages.
Nevertheless, it is important to address how the relation between Uber, its drivers and the public is going to play out in cases where there will be a cost to pay for losses involving certain operations, such as the cases of legal liability. A groundbreaking case dates back to the ending of 2014, when an American Uber driver, waiting for calls to be displayed in the app, rans over a kid, eventually killing her. This case became a question mark for legal and ethical discussions in the country, about how the relation between those three elements: the drivers, the company and the public is to be handled, and who should be held responsible in those events, especially when it comes down to compensations and legal liabilities.
Our regulation, for example, proposes a way to address that in the Código de Defesa do Consumidor – a special regulation to deal with consumer relations -, in which it points out that the provider of the service should be held responsible to pay compensations for damages caused by an ineffective provision of the service contracted, according to articles 14 and 17 from the same Código de Defesa do Consumidor (CDC). The most important matter, though, is realizing the possibility of Uber being held responsible, as there is a contract by means of the app, due to the fact that payment is often made by credit cards transactions. Therefore, Uber could be obligated to answer for anything that occurs during the trio, being subject to the passenger safety clause.
Take into account a recent judicial decision by 8º Juizado Especial Cível e das Relações de Consumo de São Luís de 2016, which determined Uber to pay a compensation for a woman who missed her flight because the driver, hired via Uber app, went astray. We can’t just imagine that new technologies might escape from whatever liabilities to pay for damage in operations, as it means nothing to classify workers as independent contractors to escape from reality when the real deal is that Uber is able to make a profit, as is the driver, already noted in recent California’s judicial tradition. It is also important to take note of the already mentioned judicial decision, in which Judge Manoel Aureliano Ferreira Neto took his time to give some tips to Uber on how to fix some errors in the service, thus avoiding future issues about problems and errors concerning the app.
We are not talking about banishing or undermining any innovations that may arise in the global Market in a near future, which may shake society as it is defined today, but we are talking about offering the possibility of a just relation, one where everybody is able to profit and benefit from technology. Therefore, we should be able to bring Uber into the equation when something goes wrong, as the company may not be able to avoid the liability, in many cases the vicarious liability. On the contrary of what Uber’s CEO Travis Kalanick said in an interview to The New York Times in 2014, it’s not about looking for what Uber did wrong, but to recognize that in the real world problems happen and it is not always a bed of roses for the future of disruptive technologies, in the extent that they might deal with reality.
Finally, our goal here was to bring some light to recente discussions, to propose some questions and to evoke future analysis, noting that it is impossible to prevent innovation and the rise of new technologies, but it is possible to seek a better future for all of us. It is, in fact, necessary that everybody have the opportunity to satisfy their needs with the app and have all their rights secured. As a great quote from cinema states, with great powers come great responsibility, and from that we must understand that it is not possible that Uber flees from any liability as proposed by our legislation. May lawsuits are yet to come, and lawmakers and judges need to be able to handle those having in mind that people have their constitutional rights respected and are able to benefit from the new technologies.