Uber Drivers Should Be Considered Entrepreneurs, Not Employees

 
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Introduction

Whether an Uber driver is an entrepreneur or an employee affects a variety of legislative areas. 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 (known as the 'mutuality of obligations test'). Specific termination notice periods must be observed, holidays must be granted and salary compensation entitlements exist in cases of illness or accident.

Public labour laws apply, including staff brokerage and leasing legislation, as well as the Sunday work ban, compulsory provisions on daily and evening work and mandatory rest periods. Gross salary is subject to deductions for various social security insurances covering the risks of age, invalidity, death or unemployment, while similar deductions take place under the mandatory pension fund schemes. Employees are mandatorily insured against the financial risks of accident. Public transportation laws apply to the Uber business model at both federal and cantonal level. Tort laws are also at stake and, although not much discussed in Switzerland, they do affect whether in the event of a car crash Uber or an independent taxi driver will be targeted with personal injury or property damage.

This update focuses on Swiss employment and labour laws. Although Uber contracts in Switzerland contain a choice in favour of Dutch law and have an International Chamber of Commerce arbitration clause, both are likely to be enforceable in private employment law, but not in terms of public employment law.

Sharing economy

Uber's business model is just one of numerous business models in the fledgling sharing economy. However, the term 'sharing economy' is something of a misnomer. Sharing economy still means the mercantilist brokerage of products and services (at least in most business cases); it is by no means suggesting a pre-capitalistic barter society. While Airbnb is the most prominent broker of residential rentals, its sharing economy rapidly expands into other areas such as personal services, clothing, car and bicycle renting, leasing parking spaces, the provision of food and beverages and corporate finance. It is still the brokerage of products and services under consideration; applying modern digital technologies allows a variety of additional revenue streams in comparison with traditional brokerage. According to estimates, approximately four million workers are engaged in the sharing economy in the United States and the number is rising rapidly (no figures are presently available for Switzerland).

The Airbnb business model is not considered a globally active hotel group with two million employees engaged in 192 countries and 34,000 cities. Nevertheless, Uber is considered by many to be a globally operating transport company with 10,000 employees in approximately 60 countries. At the centre of the worldwide judicial and administrative disputes is the question of whether the Uber Group...

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