Court Rules Florida Uber Drivers are Contractors and Not Employees

Uber drivers in Florida are contractors and not employees, according to an appellate court ruling released today.

Florida’s Third District Court of Appeal, covering Miami-Dade and Monroe Counties, issued the ruling in the case Darrin E. McGillis v.Department of Economic Opportunity; and Rasier LLC, d/b/a UBER, 3D15-2758.

The Court heard the case on an appeal from a decision made by the Florida Department of Economic Opportunity, which also concluded that Uber drivers are not employees.

The issue arose when a Cutler Bay Uber and Lyft driver, Darrin E. McGillis, had a falling out with Uber, and the ride-sharing company terminated its relationship with him.

The Florida Department of Revenue sent McGillis notification classifying him as a former employee who could qualify for reemployment (unemployment) benefits. After an appeal was made by Uber and a hearing held, the Department of Economic Opportunity reversed the initial finding by the Department of Revenue and held that McGillis was actually an independent contractor and not entitled to reemployment assistance.

Judge Thomas Logue, writing for the Court, discussed the Department of Economic Opportunity’s ruling and the testimony provided at the hearing in coming to its opinion that Uber drivers are not employees in Florida.

In making its decision, the Court used Florida’s common law to distinguish whether there was an employee or contractor basis with Uber. First, it looked at the contract that prospective Uber drivers must agree to, which specifies that the driver is an intendent contractor and not an employee and thus not entitled to unemployment benefits. It also noted that while Uber provides additional insurance coverage for commercial operation of a vehicle, it doesn’t provide its drivers with other benefits such as medical insurance, vacation pay, or retirement pay.

The Court next considered other factors such as drivers are free to set their own schedule and area of operation, drivers own their own vehicles, and drivers are able to accept or reject requests at their will. A key fact the Court noted was that drivers are free to work for Uber’s direct competitors, such as Lyft, and switch between the two at their discretion.

The only factor that seemingly held any traction in favor of an employee relationship was that Uber had the power to deactivate a driver’s account under certain circumstances, effectively terminating the relationship between Uber and a driver. This wasn’t enough to persuade the Court, though, and it held that that factor alone doesn’t mandate that an employer/employee relationship exists.

Control, the Court reasoned, is confined by Uber to the results only and not to the means used to achieve those results.

As such, there exists a level of free agency that doesn’t exist at the employer/employee relationship, the Court affirmed the findings of the Department of Economic Opportunity that Uber drivers are contractors and not employees.

While this is the first such ruling to come out from the courts in Florida, other states such as California and Oregon have classified Uber drivers as employees under the basis that Uber couldn’t otherwise exist without its drivers. Each state has its own laws and methods for determining whether a person is an employee or contractor for state employment benefits so different results across the country can be expected. The federal government also has its own factors under the Fair Labor Standards Act, and there are already lawsuits filed by Uber drivers pending in federal courts.

As it stands today, the Third District’s ruling is controlling in Florida unless another district court of appeal rules otherwise, however based on the reasoning in the opinion I wouldn’t expect that to occur. On possible outcome, though, is that Uber could tweak its business model based on the Court’s opinion to bring it further within the safety of the contractor relationship, but that will remain to be seen.

George Palaidis is a criminal defense and civil attorney practicing in Miami, Fort Lauderdale and the South Florida region.

New Changes to Florida's DUI Laws Targeting Marijuana Use?

Last month I discussed the risks related to driving under the influence of marijuana in light of the recently passed Florida Medical Marijuana Legalization Initiative, or Amendment 2. It was only a matter of time then for the Florida Legislature, as with other states, to begin drafting new laws specifically targeting marijuana use.

As I mentioned before, in order to be arrested and convicted for Driving Under the Influence (DUI) or Boating Under the Influence (BUI), the prosecutor to must prove that the driver’s breath/blood alcohol level was above a 0.08 (using either a blood test from a blood sample or from a breathalyzer machine using a breath sample), or prove that the person was under the influence of alcohol/chemical substance/controlled substance so that their normal faculties are impaired. Also, if an officer had “reasonable cause” to believe that the driver was under the influence of a controlled substance, they can request a urine sample from the driver in order to show the presence of any controlled substances in the driver’s system.  

Just last week though House Bill 237 was filed in the Florida House of Representatives titled “Driving Under the Influence of Drugs (DUID) Act,” by Democratic Representative David Silvers of West Palm Beach. This law would add an additional method to assist prosecutors in securing a conviction for DUI/BUI by inserting the following language in the DUI (section 316.193) and BUI (section 327.35) statutes:

“(d) The person has a blood level of 5 nanograms or more of delta 9 tetrahydrocannabinol per milliliter of blood, as shown by analysis of the person’s blood.”

Delta 9 tetrahydrocannabinol (delta-9-THC), for those who don’t know, is the primary psychoactive ingredient found in marijuana and can be found in the blood stream after consumption. It basically gives the high associated with marijuana. Delta-9-THC then quickly breaks down in the body and converts to the inactive metabolite carboxy-THC.

The difference between the two is that the presence delta-9-THC in the blood stream of is more indicative of very recent consumption of marijuana, whereas the inactive by-product carboxy-THC is essentially the leftovers that can be found in your urine or blood for days or weeks after consumption.

This proposed change in Florida law appears to be a reaction to the passing of Amendment 2, and an attempt to bring Florida in line with other states that have passed DUID laws following the state legalization of marijuana.

The first issue with this attempt to change the law is that blood samples can only be taken by law enforcement in limited situations. For example, if there was an accident involving death or serious bodily injury, or if the driver appears at hospital or clinic and administering a breath or urine test is “impractical or impossible.” So unless additional changes were made to Florida law with regards to blood draws (and those changes are constitutional), law enforcement officers are still left with administering a urine test if they have reasonable cause, which would likely only show the presence of the inactive byproduct carboxy-THC. Otherwise, this new provision would only assist prosecutors in serious bodily injury and manslaughter DUI cases.

Another issue with the proposed change is the arbitrary determination of the presence of 5 ng of delta-9-THC in the blood sample. States like Washington have passed DUID laws that have used the 5 ng threshold, but the scientific support behind that amount is lacking. And of course, everyone is different. The presence of delta-9-THC may vanish quickly in the blood of an occasional smoker, whereas the levels may remain higher, for a longer period of time, with a chronic smoker. And if the marijuana is ingested (eaten), very little delta-9-THC may end up in the blood stream at all.

Taking into account all of these factors, creating an absolute limit of 5 ng of delta-9-THC that can result in a conviction for DUI is dangerous and unfair to those who can now legally use marijuana under state laws.

Take for example a driver who regularly consumes medical marijuana in compliance with state law. That driver is stopped by a law enforcement officer and gives a blood sample (assuming the legality of requesting one is resolved) that is at or above 5 ng of delta-9-THC due to sustained higher concentrations from the regular use. That driver, now, will be arrested and can be convicted of DUID based on evidence that does not accurately indicate if at the time of driving s/he was under the influence.

It should be noted that a 2015 National Highway Traffic Safety Administration report found that when controlling for variables such as age, gender, ethnicity and alcohol concentration level, there was no significant increase in levels or direct link of crash risk associated with the presence of drugs like THC.

I’m confident this will be the first of many reactionary attempts to change Florida law in the wake of Amendment 2. As I discussed last month, Florida law already makes it a crime to drive while under the influence of a controlled substance (including marijuana) to the extent that the driver is impaired. It is apparent that now that there will be attempts to specifically target marijuana use by drivers, and establishing an absolute threshold as is the case with alcohol and the .08 level. These new attempts, though, need to be based on strong scientific evidence, within constitutional boundaries, and the result of serious deliberation. The consequences of a DUI conviction are serious and last a lifetime.

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.

Driving While Following Doctor's Orders: Medical Marijuana and Driving in Florida

This past November 72% of voters in Florida approved the Florida Medical Marijuana Legalization Initiative (also known as Amendment 2), which legalizes medical marijuana for individuals with specific debilitating diseases or comparable debilitating conditions as determined by a licensed state physician.

There is still much left to be done with regards to implementing Amendment 2, but some patients may begin to wonder: what happens if I take a dose of medical marijuana as my physician prescribed and drove my car?

The short answer is you can still be arrested and convicted for driving under the influence, or DUI.

Under both federal and Florida law, marijuana is still a Schedule I controlled substance and possession of it is still illegal. Amendment 2 merely removes the criminal or civil sanctions under Florida law for the medical use of marijuana by a qualified patient/caregiver/physician. Amendment 2 specifically does not immunize violations of federal law. Amendment 2 also does not immunize any non-medical use, possession, or production of marijuana in violation of Florida law. 

Now there are generally two ways for a driver to be arrested and convicted of DUI in Florida. The first method is for the prosecutor to prove that the driver’s breath/blood alcohol level is above a 0.08, and this is determined by either a blood test or a breath sample test using a breathalyzer machine.

The second method would be to prove that the person was under the influence of alcohol/chemical substance/controlled substance so that their normal faculties are impaired. The prosecutor would try to prove this using testimony from an officer who would describe the driving pattern, the appearance and behavior of the driver, how the driver performed on the field sobriety exercises, and the interrogation later done at the station. If an officer has “reasonable cause” to believe that the driver is under the influence of a controlled substance, they can request a urine sample from the driver in order to show the presence of any controlled substances in the driver’s system.

Florida law does not provide for any defense, exception, or immunity from arrest and conviction for DUI while under the influence of any physician-prescribed controlled substance. This would include controlled substances such as Klonopin, Valium, Vicodin, and OxyContin.   

Likewise, since marijuana is still a controlled substance under both Florida and federal law, a person driving or in actual physical control of a vehicle could be arrested, and convicted if it were proven, that their normal faculties were impaired by that use.

So even though medical marijuana will now be legal in Florida under Florida law, you still cannot drive while under the influence of it even if you are taking your dosage as prescribed by your treating physician, as with any other controlled substance regardless of its schedule.

Having handled numerous DUI cases through trial with positive results, including marijuana-related DUIs, I know that it is critical to examine and challenge all of the evidence presented by the prosecution, whether trying to exclude the evidence, to obtain a dismissal of the charges, or to succeed at trial. There are lifelong ramifications associated with a DUI, so any decision must be treated seriously and examined closely. 

George Palaidis is a criminal defense and civil business attorney practicing in Miami, Fort Lauderdale and the South Florida region.