Why doesn't Uber value their drivers

Above the law? Research shows how and why things get uncomfortable for drivers

No more free travel for Uber in Basel: Research from the TagesWoche shows how and why it becomes uncomfortable for drivers - and that the company also has to buckle up properly.

So far, Uber has had little to nothing to fear in Basel. Business is booming. "We are well over 100 drivers here," estimates UberPop driver Georg *. “And there are actually too few, the demand is so great. Sales for Uber have to be gigantic on weekends by now. "

Gigantic - a fitting word for the 62 billion dollar corporation from California, which once called itself UberCab, but neither wants to be a taxi company nor an employer - but rather a “service provider”.

Uber has its army of drivers transport people every day, but neither does it want to be a passenger transport company. It pays neither fees nor a penny of all the other costs that normal Swiss transport companies and employers incur.

Social security? Vehicle fleet? Nothing there: Uber doesn't employ a single driver and doesn't own a single vehicle. It is true that every Uber driver delivers 25 percent of the income (including tips) directly to the company - this is how he pays for the use of the app. According to the “Sunday newspaper”, Uber generated sales of 30 million francs in Switzerland alone last year.

The company paid less than CHF 3,000 in tax. Somebody knocks us over the ear. Somehow yes: The money goes to the Netherlands. But even the Netherlands can be duped voluntarily: According to «Fortune», Uber has to pay taxes on around one percent of its income. The rest disappears thanks to overly complex constructs in tax havens.

Curving around in the gray area

Take Geneva, for example: the city wanted to set guard rails here from the start. Over? Peut-être, mais pas comme ça. This was announced to the driving service as early as 2014: Without official approval, Uber would violate the cantonal taxi and limousine law.

But Uber's name says it all: The company hovers above everything, including the laws of Switzerland's second largest city. And so in September 2014 the group defied the official admonition and launched its driving service.

It's the typical approach: A "no" that is not accompanied by obstacles such as coercive measures, buses or roadblocks means an exciting - and profitable - challenge for Uber. A procedure that has almost always paid off so far. Worldwide.

It is true that the Geneva-based UberPop banned immediately after six months in March 2015 - Uber appealed unsuccessfully, and was also flashed before federal court. Nevertheless: UberX and UberBlack (UberWas? - Declaration) are driving, a planned Geneva law should soon smooth things over. Thanks to the latest technology, unbeatable prices, an encrusted taxi business and clever PR, the company knows that the passengers and thus the public opinion are on its side anyway.

Wiggle over the foundation pillar

Despite everything, two main pillars of the Uber construct are beginning to wobble. Both support the most popular part of the Uber business: UberPop. Firstly, the group claims that the drivers are not professional drivers - and secondly, Uber sees itself as a pure service provider with no further obligations.

The first pillar specifically relates to the question of whether UberPop drivers are traders or not. According to Basel Security Director Baschi Dürr, this is “the key question” for the Justice and Security Department. Finally, Uber Switzerland takes the following position regarding UberPop:

“Since there are no profits on average after deducting all costs, UberPop does not meet the requirements for professional passenger transport. Not only are the passengers our users, but also the drivers. ”

So even though people are transported and money changes hands, what happens is just a “hobby”, according to Uber: the driver is also a user of a service, he makes no profit. From a legal point of view, professional drivers are clearly defined as being a business: in the “Ordinance on the working and rest hours of professional drivers of light passenger transport vehicles and heavy passenger vehicles” (ARV 2), Art. JSD spokesman Andreas Knuchel sums up the essentials as follows: «Commercial activity is assumed if the trips take place regularly and contribute to economic success; just two or more trips within 16 days with which an economic success is to be achieved. "

Proceedings against UberPop drivers nearing completion

Proof that such an “economic success” exists is not easy for the police to provide. Research by TagesWoche shows, however, that it is currently easy to make a (modest) profit with UberPop, even after deducting vehicle costs and all other expenses. The commercialism would therefore also quickly be given for occasional drivers who are on the road regularly on weekends.

It's up to the authorities: There are 15 pending lawsuits against UberPop drivers. "Two proceedings are about to be completed and will then be referred to the prosecution's criminal warrant department," says spokesman Andreas Knuchel.

Anyone who wants to transport people on a professional basis must meet special conditions in Switzerland and pass exams. Obtaining the "121" (this code is clearly visible on the driver's license) is time-consuming and costly. Drivers need at least a certificate of ability to transport people, a cantonal permit, an entry in the vehicle registration document, an entry in the driver’s license, special equipment for the vehicle (with a tachograph in the trunk), a driver card and special insurance.

Strange in the UberPop contract

No problem, thinks the aspiring UberPop driver: I don't have to have everything. In contrast to UberX, all you need is a valid driver's license for at least three years, a suitable car, a Swiss residence and a white vest. This is what the new driver welcome website says:

The 15-page contract that UberPop drivers sign after registering and uploading all their documents online says something different. In the document that TagesWoche has received (contract from 2016), «confirm and declare» Swiss UberPop drivers on page 6 in black and white,

«That you must always ... have and must maintain: ... all licenses, permits, permits and authorizations that apply to you and are required to provide passenger transport services to third parties in the area; have an adequate and up-to-date level of training, expertise and experience to provide the transportation services in a professional manner with the appropriate skill, care and caution ... as well as ... confirm and declare ... that your vehicle is always properly registered and for operation as a passenger vehicle in the area is permitted… ».

UberPop driver Georg can only shake his head at this: Of course, many taxi drivers would also turn around for Uber every now and then - "But otherwise hardly anyone has the 121"! An UberX driver confirms: he signed exactly the same contract. Uber Switzerland doesn't seem to make any difference between UberPop and UberX at the contract level.

The company knows very well that many UberPop drivers violate the basic contractual conditions from the outset, in other words, do not have any authorization to transport people on a professional basis. After all, Uber wants to have everything confirmed in writing:

"To ensure that you are in compliance with all requirements ... you must provide Company with written copies of all licenses, permits, approvals, authorizations, registrations and certificates prior to performing any transportation services."

To uncover fraudsters, Uber just takes a look at the driver's licenses uploaded by the drivers: No “121”, contractual conditions not met. But that's not an obstacle to a successful UberPop career.

“Indeed, it seems to me that Uber - especially if the company itself draws the driver's attention to the permits they need to have - assumes responsibility in any case, provided Uber does not check anything and must expect the drivers to meet the requirements do not meet », is the assessment of Professor Thomas Geiser, an expert in labor law at the University of St. Gallen. That means that the drivers are not simply responsible here - the way Uber would like them to be? "Uber can very well be liable itself," said Thomas Geiser.

It is the task of the police to monitor compliance with the provisions for drivers in accordance with ARV 2, according to JSD spokesman Knuchel. However, it is not the police who are responsible for the contractual relationship between two parties, but rather the two contractual partners among themselves - they may have to take civil action against each other.

Employment law expert Geiser explains: “Of course, the contractual relationship between Uber and the driver can be important for the applicability of certain provisions of the ARV. In this respect, the authority must also take care of the contractual relationship and assess it. However, this assessment in no way affects the mutual claims of Uber and the driver. "

Basler compensation office reports Uber drivers to Zurich

Uber's second problem is, in short, that the Swiss Accident Insurance Fund Suva does not accept the argument that UberPop drivers are self-employed or hobby drivers: Suva classifies Uber drivers as employees and thus requires the company to provide social security for the Driver pays - like all other employers.

Uber is now feeling this via the Basel Compensation Office. Anyone who earns at least 2,300 francs per year is liable for AHV. “A lot of UberPop drivers don't know that,” says one driver, “and that's a problem. The company doesn't care, it tries to hand over all responsibility to the drivers ».

If a Basel Uber driver registers with the compensation office as a self-employed person, the following happens: He will be referred to the responsible Suva. But this would “judge Uber drivers as dependent (ie as employees),” says Mike Oberholzer, head of the Basel-Stadt compensation office.

“In the case of Uber, we would then inform the compensation office of the canton of Zurich so that they can check whether Uber has the employee's wages on the payroll, i.e. whether they are settling AHV contributions. If it is learned in other ways that a person is working for Uber, the compensation office of the canton of Zurich would also be informed so that appropriate measures can be taken, ”Oberholzer continued.

The Basel Compensation Office reports the cases to the Compensation Office of the Canton of Zurich, as Uber, as a Swiss company, settles with this fund. According to Mike Oberholzer, this has already taken measures: “It puts Uber under pressure and bills it for social security contributions. If these are not paid, the outstanding contributions would be demanded as with any other company. "

From the point of view of social security or AHV, Uber is responsible, according to Oberholzer's assessment, and that will also be carried out: "With the known Uber drivers, a check is made to see whether the social security contributions are billed, and action is taken accordingly."

Taskforce against Uber

There are 15 proceedings against UberPop drivers in progress due to possible commercial activity, and at the same time the Basler compensation office reports Uber drivers to Zurich, where they are involved in major Suva proceedings against the company: The grace period is definitely over.

So that the Uber thing does not grow too much for the administration, the Basel government council has commissioned a working group to coordinate any issues that arise. It will take some time before the task force gets an overview: "Coordination is an issue in Basel-Stadt," says Mike Oberholzer.

The TagesWoche has confronted Uber several times with the facts and specific questions presented here - with a request for comments. In vain: 36 hours after the first request, Uber announced that "no official statement could be obtained" at the moment.
* Name changed

About what?

UberPop is the best-known and most popular offer of the driving service: Anyone with a car (four-door, not older than 10 years), a driver's license (at least 3 years) and a white vest can become a hobby taxi driver in their free time. UberPop rides are popular not least because they are unrivaled in terms of price. In the words of Uber, UberPop is “a ride sharing service among individuals. People take each other with them for a small fee to reduce the fixed costs for their existing car or simply to have nice conversations. " Most Uber drivers in Basel fall into this category.

UberX refers to an offer in which the passengers are transported by professional drivers who have a certificate of competence for passenger transport - and whose car is equipped with a tachograph. It costs a little more than UberPop and there is less driver density.

UberBlack is basically Uber's high-end offer. Anyone who uses this will be chauffeured in a stylish luxury body by a professional driver. At correspondingly higher prices. "A good choice for a business meeting or a date," says Uber. This is well received in Zurich, for example - in Basel there are currently only UberPop and UberX.