It was just before sunrise, and John was cruising down a near-empty Dallas highway when a speeding car rear-ended him at over 65 miles per hour. His body lunged forward, but in the moment, he didn’t think he was seriously hurt; with his adrenaline pumping, John just felt a bit “shaken up.” A veteran Uber driver, he pulled over to the shoulder, exchanged information with the other driver — who, it later emerged, lacked active insurance — and reassured his passenger they’d be at their destination soon. He even drove a few more rides that day. But John couldn’t rid himself of a nagging headache and lingering pain in his back and neck that grew more intense each hour.
When he woke up the next morning, he sensed there was something seriously wrong. Thus began the endless saga of doctor visits and MRIs that culminated in a major back surgery to repair nerve damage. John is now only able to drive a fraction of the 70-80 hours a week he used to. His neck and back begin to ache after just a few hours on the road.
“I like driving, and still have to provide,” said the father of two children, who still drives for Uber and asked that his real name be withheld over fear of reprisals. Since the accident, he says he’s cut the family grocery budget by at least a fifth to stretch his smaller paycheck as far as possible.
What happened to John is common — driving a car for a living is a risky proposition. Though the federal government doesn’t break out data related to Uber, taxi drivers, who perform very similar work, are more likely to be killed on the job than police officers, and they are are about as likely to miss work due to an injury as workers in other dangerous industries like logging or mining
But unlike many taxi drivers, Uber drivers are not entitled to workers’ compensation benefits. That means when drivers like John are hurt on the job, and unable to go back to work full-time, they won’t receive a portion of their salary during recovery—and they often have to rely on their own health insurance to pay medical bills.
“I didn’t even think about getting workers’ compensation,” John said. “Uber wasn’t paying for anything.” John knew what many drivers know: that Uber fights tooth and nail in courts and in front of labor boards from New York to California to classify its drivers as independent contractors, in part to avoid having to pay for workers’ compensation payouts to its more than 300,000 drivers, a workforce comparable to major employers like Home Depot and Target.
Last month, for the first time since it appeared on the scene in 2009, Uber moved to acknowledge and address the problem. The company has partnered with insurance giants OneBeacon and Aon to pilot a new voluntary program that would provide a way for drivers like John to recoup their wages and cover medical expenses if they are injured on the job. Uber touted the insurance as a “low-cost option” for its drivers “to protect themselves and their families against rare and unforeseen accidents that prevent them from working.” The plan will be available in eight states, and it will be up to drivers to decide if they want to set aside 3.75 cents per-mile to buy the policy. Uber has also raised its rates in those states to offset the cost of buying the policy—though Uber rates tend to fluctuate, and there’s no guarantee that the company will not cut the the price in the future.
The Intercept obtained a copy of an 18-page explanation of coverage provided to drivers in Illinois. The insurance scheme was covered in national publications like Bloomberg, as well as local outlets where the plan rolled out, and described as Uber offering “workers’ compensation” benefits. But the first page of the document exclaims in all capital letters: “THIS INSURANCE IS NOT WORKERS’ COMPENSATION INSURANCE.”
There are two major differences between Uber’s plan and traditional workers’ compensation insurance: the plan is optional, and Uber is asking drivers to pay for it themselves. By law, workers’ compensation insurance for traditional employees is mandatory, and must be paid for by the employer itself. It’s hard to be sure how much money Uber saves by asking drivers to foot the bill—but based on proprietary risk-rates provided to The Intercept to the National Council on Compensation Insurance, it could be thousands of dollars per year per driver.
Compared to traditional workers’ compensation insurance, Uber’s policy represents a major step down in terms of quality, said Michael Gruber, president of the Workers’ Injury Law & Advocacy Group, a non-profit group of attorneys and others focused on occupational claims. For example, in Massachusetts, New York and California, workers’ compensation can pay out two-thirds of salary when a worker is too injured to return to work — while the Uber policy maxes out at half of a driver’s average weekly earnings. Uber’s policy also appears to allow the insurer to deny coverage at their own doctors discretion. Another key feature of traditional workers’ compensation is that an appointed State Board adjudicates disputes that may arise. Those boards are often comprised of both labor and business representatives. Uber’s policy appears to require drivers to submit to a binding arbitration proceeding, explicitly renounce their right to appear before a workers’ comp board, and give up their right to sue or join a class-action lawsuit.
Uber didn’t directly dispute that characterization. “Driver injury protection provides people who drive with Uber a low-cost option to protect themselves and their families against unforeseen accidents that prevent them from working,” said an Uber spokesperson who asked to remain anonymous. “The product is specifically tailored to fit the flexible nature of ridesharing and provides access to coverage that was previously cost prohibitive or administratively difficult for drivers to access on their own.”
The insurance policy is not without precedent. In many ways, it resembles the types of disability benefits long-haul truckers purchase to make sure they are covered when they cross state lines into different workers’ compensation jurisdictions, said Robert Grey, an attorney and workers’ compensation expert in New York. Since workers’ compensation varies state-by-state, a portable insurance plan may make sense for drivers who find themselves crisscrossing the country.
But Uber drivers typically work within one state. Grey worries that the Uber plan is a scheme to save the company money while providing the illusion of coverage. Drivers won’t push for more comprehensive workers’ compensation benefits, Grey said, if they think Uber is looking out for them. “It’s about creating a situation that feels comfortable enough that drivers don’t worry about the larger scope of benefits they are losing,” he said. Indeed, the description of benefits document from Illinoise actually requires the driver to identify as a contractor in order to access coverage.
In nearly every city and state Uber has entered, there’s been a battle over whether drivers are independent contractors or traditional employees Although the Obama administration largely stayed out of the debate, its Department of Labor did issue a series of non-binding guidelines urging so-called “platform” companies to avoid misclassifying their workforce. The Trump administration withdrew those guidelines earlier this month.
The company also has been forced to fend off high-profile suits in California and New York that would force it to treat drivers like employees. In a separate batch of lawsuits, ironically, Uber has argued that its text messages to potential drivers shouldn’t be covered by anti-spamming laws because they are technically offers of employment, and therefore exempt from regulation.
Ultimately, Uber’s business model depends on fighting off attempts to classify its workers as employees, which would make them eligible for benefits and subject to labor regulations. And workers’ compensation is often frontlines of that battle. “The first commandment in the Bible Of Uber is: Thou Shalt Not Be an Employee,” said Grey. “workers’ compensation is often a prime factor there.”
In some instances, Uber has prefered to pull up stakes before paying out workers’ compensation. In 2015, shortly after Uber launched operations in Alaska, Rhonda Gerharz, the chief investigator for Alaska’s Workers’ Compensation Board, initiated an investigation into the company. She thought that the company was possibly misclassifying its drivers as independent contractors, allowing it to avoid buying expensive workers’ compensation insurance in violation of Alaska law.
“Misclassification is a big deal,” she explained. “If these workers get hurt and the company doesn’t have insurance, the public ends up picking up the bill in the form of benefits like food stamps and low-income housing assistance.”
She began to dig into the exact relationship between drivers and the company. “I look at things like: does the business have the right to hire or fire someone, who’s exercising control of the manner of means to accomplish the task, and who provides the tools for the job,” she told The Intercept.
At first blush, Uber appeared to Gerharz to be operating like a traditional employer, and therefore skirting workers’ compensation laws. But before she could finish her investigation, Uber pulled out of the state entirely. Uber did not respond to request for comment about its operations in Alaska. But over the past two years, Uber worked to convince Alaska legislators to write a carve-out to exempt transportation companies that do business with an app from workers’ compensation regulation. Alaska Governor Bill Walker signed the bill into law earlier this month.
Gerharz is frustrated that Uber found a way to circumvent her agency’s regulation. “They are powerful because they are a financial giant,” she said. “Those guys are bullies.” As for the workers’ compensation plan that Uber is piloting to drivers, Gerharz says it just doesn’t pass muster: “Here in Alaska you can’t charge employees for workers’ compensation premiums, that’s a misdemeanor in our state,” she said.
In other parts of the country, Uber drivers can get workers’ compensation coverage. But the company never foots the bill. In New York, for example, Uber is required by state law to consider its drivers “Black Car Drivers,” who are not employees, but are still eligible for a form of workers’ compensation that’s funded by a city-wide surcharge on rides. Last month, under pressure from a driver lawsuit, Uber admitted that it had been improperly pocketing a portion of that surcharge, as well as a local sales tax, for years — underpaying drivers by tens of millions of dollars.
The new Uber pilot policy falls short of the Black Car Fund’s standard of coverage. It fails to include the most common type of workers’ compensation claim: “permanent partial disability,” a situation resembling John’s, where a worker is hurt on the job, making it hard for them to work full-time. The document reviewed by The Intercept, from the Illinois pilot, only appears to covers disabilities that completely prevent a driver from working. Bryant Greening, an attorney in Chicago who specializes in ride-sharing cases, said Uber drivers reach out to him multiple times a week, reporting an injury on the job — but few of them are completely disabled. “It’s an ultra-hazardous job,” he said. “Nobody thinks they’re going to get hurt — until they do.”
Another apparent major gap in the policy: mental health and trauma, said Gruber. Uber’s policy contains provisions preemptively denying permanent disability coverage for “Mental and Nervous or Depressive” conditions. That’s despite the fact that Uber drivers — especially women — have been exposed to sexual harassment and assault on the job.
San Diego driver Becky Graham had to stop working for six weeks in 2015 after she said two of her Uber passengers pinned her down and sexually assaulted her. “I panicked every time I turned on the app, it was just so traumatizing for me,” she told The Intercept. After working with a psychiatrist, she was able to return to driving—a job she enjoyed despite the haunting memory of her assault. Although driving for Uber was her main source of income, she was not able to recoup any lost wages during the time she sought treatment for her trauma, even after her case was profiled by the Guardian as part of a longer investigation into Uber’s policy to not turn over a driver or rider’s “basic information” to police without a subpoena. Now, Graham said she is driving less than half of the hours she used to. The work is so much more emotionally taxing. “I panic a little every time I pick someone up,” she says. Under Uber’s new policy, it’s unclear if Graham would not be eligible for any benefits — and Uber would not clarify how its policy would apply in her case.
Graham’s no stranger to workplace trauma. Back in 2001, she worked as a manager at a Carl’s Junior restaurant that she said was violently robbed at gunpoint. The company paid for her and her staff to take the rest of the week off, she said, and provided counseling to help her team process the incident. She can no longer work in the restaurant industry, she says, because she developed intense pain in her feet from standing over long stretches—but she’s nostalgic for her time as a genuine legal employee. “I wished I worked for a company that had my back,” she said. “At Uber, we aren’t considered employees, what can I do?”
These yawning gaps in insurance are nothing new for Uber drivers. The company’s $1 million commercial insurance policy to cover accidents, for example, does not apply when drivers are on the clock but have yet to be hailed for a ride. That’s akin to a fast food restaurant only fully covering its employees when they are making a sandwich or working the register — not when they are waiting in the store — said Bhairavi Desai, the head of the New York City Taxi Workers alliance, an advocacy group the represents thousands of Uber drivers and is often critical of the company. “Everything Uber, does they lower the standards for workers,” she told The Intercept.
Uber has not provided any data on how many drivers have opted to buy its new policy. Devon, an Uber driver in Chicago who didn’t want his full name being used to criticize the company, scoffed at the insurance scheme. “It’s probably as worthless as every other program they roll out for us,” he said, citing a litany of Uber-sponsored offers to help drivers with tax prep, health insurance, and car leases. Asked what precautions he took in case he was injured an unable to work, he replied: “I pray.”
Not everyone feels that way. His friend and fellow driver Dennis is seriously considering buying the policy. “I always worry about getting hurt,” he said. Dennis is concerned, however, that the fee increase that Uber is imposing to offset the cost of the policy for drivers will evaporate if Uber lowers its prices, leaving him with less take-home pay.
In late May, Dennis, Devon, and a few dozen other Uber drivers attended the funeral of a fellow Chicago-area Uber driver Grant Nelson, who was stabbed to death while working. Neither man knew Nelson, but they felt a certain kinship with him. “Most of us [drivers] never met him,” says Devon. “This hit really close to home for us.”
Uber’s pilot insurance policy does include a survivor’s benefit for families of drivers killed on the job. And Nelson’s murder, Dennis says, is motivating many of his fellow drivers to consider buying the policy. Uber did not respond to request for comment about whether Nelson’s family would receive a death benefit—the insurance plan launched in Chicago just a few days before he was stabbed.
Although he’s critical of Uber’s pilot program Gruber, the President of Workers’ Injury Law & Advocacy Group, is happy that, at long last, Uber drivers will have access to some coverage: “If this is the only option, better something than nothing,” he says.
John, the injured driver from Texas, disagrees. Uber is not piloting the program in his state, and he wouldn’t buy the policy even if it were available to him. “With all that money they are paying me?” he said sarcastically. “No thanks, Uber.”
The post Uber But For Workers’ Comp: Company’s Plan Neglects Injured Drivers appeared first on The Intercept.