Controversies surrounding Uber tend to fall into two different categories: either horror stories of lapses in rider safety or the debate over whether the company’s drivers should be considered employees as opposed to private contractors.

But there may be a connection between those two seemingly disparate situations.

The San Francisco and Los Angeles district attorneys have accused Uber of failing to uncover serious crimes on the records of some drivers allowed to operate in the two cities. The attorneys said they discovered 25 drivers in the two cities whose criminal records had gone undetected, and at least some records included felonies. Notably, one of the drivers whose criminal record went undetected was a convicted murderer who spent 26 years behind bars. 

The discovery would appear to put pressure on Uber to adopt a more thorough background check process in order to stay in consumers’ good graces. But there's more at stake here: If the company does adopt more rigorous background checks, which could include fingerprinting, drivers seeking classification as employees could try to use the move as evidence they are indeed employees and not private contractors, says one labor attorney.

The issue at hand is how much control Uber exercises over its drivers, according to Aimee E. Delaney, leader of the
 Labor & Employment Practice Group at the Chicago headquarters of Hinshaw & Culbertson LLP. Generally speaking, evidence of an employer attempting to control a person's behavior can be used to determine that the worker is an employee.

One question that can help determine if someone is an employee is "Does the company control or have the right to control what the worker does and how the worker does his or her job?" according to the IRS website. So theoretically, asking someone to take an extra step to show they are qualified to do the work could constitute a form of control. The IRS admits however, "There is no 'magic' or set number of factors that 'makes' the worker an employee or an independent contractor" when it comes to control.  

“I sympathize with where they are at because I think they are in a difficult position,” Delaney says of Uber, adding that the company has to "walk kind of a fine line.”

If the company simply ran background check materials through an additional database, that probably wouldn’t feed the case of drivers seeking employee classification. But if Uber puts a new requirement on drivers to be fingerprinted, that might come up in such a labor dispute.

Delaney, who represents employers in labor arbitrations, says that while fingerprinting wouldn't necesarily provide enough fodder to nudge drivers into classifications as employees, she imagines it’s an idea that has crossed the minds of Uber’s legal team.

Companies relying on 1099 employees or private contractors regularly use quick-turnaround background check companies to provide consumers with a sense of security. At least in the case of ridesharing companies, these background checks don’t always meet the rigor of checks required for taxi drivers in certain areas. In some cases, companies offering the checks can tweak them to fit local procedures.

Members of Congress have in the past asked Uber, Lyft, and Sidecar to incorporate fingerprinting into their background checks. The eight legislators contended that state-regulated taxi companies regularly went through such procedures.

And the San Francisco and Los Angeles district attorneys have asserted that Uber’s background check processes could not have uncovered the criminal records of the 25 drivers in question, in part because the process doesn’t use biometric identifiers like fingerprinting, according to the New York Times.

Uber told the Times that the service typically used by taxi companies for background checks, Live Scan, was not necessarily more accurate than what Uber uses.

“The reality is that neither is 100 percent foolproof--as we discovered last year when putting hundreds of people through our checks who identified themselves as taxi drivers,” an Uber statement said. “That process uncovered convictions for D.U.I., rape, attempted murder, child abuse, and violence.”

In addition to calling into question the effectiveness of the checks taxi companies use, Uber has also argued that the fingerprinting requirement is too onerous and may make it harder for the company to keep up a steady stream of new drivers. 

Uber was contacted with a request for comment, and this post will be updated if the company responds. 

Published on: Aug 20, 2015