UBER-Drivers Are Entrepreneurs, Not Employees - A Liberal Pleading

Author:Dr. Thomas Rihm
Profession:Rihm Attorneys
 
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The question whether an UBER driver is an entrepreneur or an employee affects a variety of legislative areas in Switzerland (like in other countries): amongst others, if Swiss employment laws apply, the employee has a basic right to perform the agreed upon work and the employer must accept such work and pay for it (the "mutuality of obligations test"). There are specific termination notice periods to be observed, holidays must be granted and salary compensation entitlements exist in cases of illness or accident.

Public labour laws in Switzerland including its staff brokerage and leasing legislation apply as well (basic Sunday work ban, compulsory provisions on daily and evening work and on mandatory rest periods). The gross salary is subject to deductions for various social security insurances covering the risks of age, invalidity, death or unemployment, whilst similar deductions take place under the mandatory pension fund schemes. Employees are mandatorily insured against the financial risks of accident. Public transportation laws both on the federal and cantonal (state) level apply to the UBER business model too. And tort laws are also at stake though not yet much discussed in Switzerland (e.g. affecting the question whether UBER or the independent taxi driver is targeted in the case of a car crash with personal injury and/or property damages).

"The term "sharing economy" is a misnomer as we are by no means back to a pre-capitalistic barter society."

Our further remarks focus on Swiss employment and labor laws though UBER contracts in Switzerland contain a choice in favor of Dutch laws and have an ICC-arbitration clause (both are most likely enforceable in the area of private employment laws, but not in terms of public employment laws). Swiss staff brokerage and leasing legislation requires Swiss employment contracts as well and are not discussed any further.

UBER as part of the "sharing economy"

The business model of UBER is just one of numerous business models in the fledgling "sharing economy". The term "sharing economy" is perhaps a misnomer: we are by no means back on the way to a pre-capitalistic barter society, as the "sharing economy" still means the mercantilistic brokerage of products and services (at least in most of its business cases). Whilst Airbnb is the most prominent broker of residential rentals, the sharing economy rapidly expands into other areas such as personal services, clothing, car and bicycle renting, lease of parking lots, the provision of food and beverages, and corporate finance (just to name a few examples). At the end of the day, it is still the brokerage of products and services against consideration, thereby applying most modern digital technologies what allows a variety of additional revenue streams in comparison with traditional brokerage. According to somewhat reliable estimates, about 4 million workers are currently engaged in the sharing economy in the United States (this number rapidly rising; no figures around for Switzerland).

"In the eyes of many, UBER is a globally operating transport company with 10,000 employees in approximately 60 countries."

Now, nobody would dare to call the business model Airbnb as a globally active hotel group with 2 million employees - engaged in 192 countries and 34,000 cities respectively. Nevertheless, in the eyes of many, UBER is a globally operating transport company with 10,000 employees in approximately 60 countries. At the center of the worldwide judicial and/or administrative disputes...

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