Darrin E. McGillis, Appellant,
Department of Economic Opportunity; and Rasier LLC, d/b/a UBER, Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from the Department of Economic Opportunity Lower
Tribunal No. 0026283468-02.
E. McGillis, in proper person.
& 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.
LAGOA, SALTER, and LOGUE, JJ.
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.
AND PROCEDURAL HISTORY
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
assistance against Rasier LLC, d/b/a Uber. 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.
Department of Revenue initially found that McGillis served as
an Uber employee. Uber contested this determination, and an
evidentiary hearing was held 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.
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. Drivers receive a percentage
of the fare charged to the passengers,  and Uber
processes payments to drivers weekly by direct deposit.
supplies additional insurance coverage for commercial
operation of a vehicle, but it does not provide other
benefits such as medical insurance, vacation 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
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.
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. Drivers are free to set
their own schedules and to determine what locations they will
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
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