Darrin McGillis vs. Uber Technologies, Inc. Reply Brief Third District Court of Appeal

7/25/2019 Darrin McGillis vs. Uber Technologies, Inc. Reply Brief Third District Court of Appeal

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IN THE DISTRICT COURT OF APPEAL

FOR THE THIRD DISTRICT

STATE OF FLORIDA

DARRIN E. MCGILLIS

Appellant,

vs.

Third DCA Case No.DEPARTMENT OF ECONOMIC

3D15-2758

OPPORTUNITY; and RAISER LLC,dba UBER; ET AL., L.T. Case No. 0026 2834 68-02

Appellees.____________________________/

APPELLANT'S REPLY BRIEF

__________________________________________

On Appeal from the final agency order of theState of Florida Department of Economic Opportunity

Reemployment Assistance Appeals.

__________________________________________

Respectfully Submitted,

Darrin E. McGillis, Appellant

/s/Darrin E. McGillis____

In Proper Person

P.O. Box 56-6091Miami FL 33256

Telephone.:(305) 506-4411

Email(1):[email protected](2):[email protected]

RECEIVED,6/1/20163:35AM,MaryCayBlanks,T

hirdDistrictCourtofAppeal


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PRELIMINARY STATEMENT

In this reply brief, the Appellant, Darrin E. McGillis shall be referred to as

the "Appellant". The Appellee, Raiser LLC shall be referred to as "Uber", and

the Appellee, the Department of Economic Opportunity shall be referred to as

"DEO". References to the record on appeal shall be by the symbol (R.)followed

by the page number.

ARUGUMENT

The Internal Revenue Service, "IRS" and U.S. Labor Department

regulations, as well as multiple decisions by the U.S. Supreme Court, notably in its

1992 decision in Nationwide Mutual Insurance Co. v. Darden, (90-1802), 503

U.S. 318 (1992) and other federal and state courts have long established that

employers must conduct a common sense economic reality check when making an

independent contractor classification.

A gig economy does not mean an economy without rules and regulations

that protect both driver and passenger. Employee protections exist for the benefit

of employees and the communities they serve. The fact that services now take

place across internet applications, like Uber, does not vitiate these employee

protections or make these protections less necessary. Unfortunately, the magnitude

of this generational threat is leading to hundreds of thousands of employees of

internet applications like Uber making less then minimum wage.


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This Court cannot in good conscience support this disastrous result on so

many citizens of the State of Florida tricked and/or induced into a bait and switch

promise of wages that do not exist. Uber has a long, long road to travel before it is

in compliance with State and Federal labor laws. Technology cannot erase an

employer's obligations to maintain a workers basic rights.1

Economic Realities Test Applies to Independent Contractor vs. Employee

Relationship, as stated by the U.S. Department of Labor. (R.380), (R.379-393).For

employers classifying providers of personal services as independent contractors

rather than employees, the United States Department of Labor (DOL) has issued a

clear warning: In its view, most American workers are really employees. The

Departments Wage and Hour Division issued a 15-page interpretative guidance

memorandum on July 15, 2015, (R.379-393) seeking to clarify the sometimes

difficult question of who should be classified as an employee for purposes of

federal wage and hour laws.

1Companies like Uber have a great profit incentive to classify people who work forthem as independent contractors. For instance, an employer must generally

withhold federal income taxes, withhold, match, and pay over Social Security and

Medicare taxes, and pay unemployment tax on wages paid to an employee, but notto an independent contractor. Companies are not liable under respondeat superior

principles for the tortuous acts of independent contractors. And independentcontractors are not entitled to overtime pay, paid vacation or sick days, group

medical, dental, disability, or life insurance, or to any of the benefits flowing fromthe many federal, state, and municipal laws that protect employees, such as the

FLSA, FMLA, Title VII, and state unemployment and workers compensationlaws. Also, independent contractors are not covered by the National Labor

Relations Act and cannot unionize under its protection.


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While most misclassified employees are labeled independent contractors,

increasingly employers are also classifying individuals rendering personal services

as owners, partners, or members of a limited liability company, instead of as

employees. Some employers intentionally misclassify employees as a means to cut

costs and avoid compliance with labor laws.

According to the DOL, employers must apply an economic realities test to

determine whether a worker is an employee or an independent contractor. Certain

key factors should be considered in light of the ultimate determination of whether

the worker is really in business for him or herself (and thus is an independent

contractor) or is economically dependent on the employer (and thus is its

employee). The classification issue is important because employees improperly

labeled as independent contractors miss out on legal protections like minimum

wage and overtime pay, reemployment assistance benefits, Workers

Compensation insurance, and private group benefits.

In the guidance, Wage and Hour Division Administrator David Weil listed

the following factors as requiring case-by-case analysis to properly determine an

individuals classification, with each factor having to be examined and analyzed in

relation to one another, and no single factor being determinative:

Is the Work an Integral Part of the Employers Business?

Does the Workers Managerial Skill Affect the Workers Opportunity

for Profit or Loss?


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How Does the Workers Relative Investment Compare to the

Employers Investment?

Does the Work Performed Require Special Skill and Initiative?

Is the Relationship between the Worker and the Employer Permanent

or Indefinite?

What is the Nature and Degree of the Employers Control?

Under the Fair Labor Standards Act of 1938 (FLSA), the scope of the

employment relationship is very broad, according to Mr. Weil.

The FLSA defines employee as any individual employed by an

employer, and employ includes to suffer or permit to work. This suffer or

permit concept has broad applicability, according to Mr. Weil, and is critical to

determining whether a worker is an employee and thus entitled to the FLSAs

protections. The suffer or permit standard was specifically designed to ensure as

broad of a scope of statutory coverage as possible, the guidance memorandum

states.

The memorandum goes on to state that Unlike the common law control test,

which analyzes whether a worker is an employee based on the employers control

over the worker and not the broader economic realities of the working relationship,

the suffer or permit standard broadens the scope of employment relationships

covered by the FLSA.


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An agreement between an employer and a worker designating or labeling the

worker as an independent contractor is not indicative of the economic realities of

the working relationship and is not relevant to the analysis of the workers status,

according to Mr. Weil. [emphases added]. The ultimate inquiry under the

FLSA, the memorandum states, is whether the worker is economically

dependent on the employer or truly in business for him or herself. If the worker is

economically dependent on the employer, then the worker is an employee. If the

worker is in business for him or herself (i.e., economically independent from the

employer), then the worker is an independent contractor. See Administrators

Interpretation No. 2015-1, Wage and Hour Division (Dept of Labor July 15,

2015); (R.380), (R.379-393).

Counsel for Uber failed to inform this Court that his clients have settled the

U.S. District Court class action case of OConnor v. Uber Technologies, Inc.,

2015 WL 1069092 (N.D. Cal. Mar. 11, 2015)which appellant cited in his Initial

Brief at pages, 14, 16, 19, 21, 22, 23, 25, 34, 36, 37, 38, 39, 40 and 41. Boston

Attorney Shannon Liss-Riordan, Esq., who represented the Appellant in the

hearing before the Special Deputy was able to negotiate through mediation a One

Hundred Million Dollar payout by Uber to drivers located in California and

Massachusetts for misclassifying it's drivers as independent contractors. This

settlement was national news and the Court should be aware of this high profile


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settlement. The terms of the settlement can be found on "pacer" along with current

legal pleadings and rulings by the Federal Court in California. It is respectfully

requested that this Court take judicial notice of the California settlement and

its terms. A hearing before U.S. District Judge Edward Chen to review and

possibly approve the multi-million dollar settlement will take place on Thursday,

June 2, 2016, in California. It begs the question, that if Uber will spend One

Hundred Million Dollars to settle a misclassification lawsuit in California, why

would the State of Florida just bow to the illegal activities of Uber, while others

fight for justice for the underpaid, wrongly fired, drivers of Uber.

As correctly noted in the Initial Brief at (pages 43 - 44):

The standard of review that applies to an administrative decision based on a

point of law does not require the same degree of deference as a decision based on a

finding of fact. Section 120.68(7)(d), Florida Statutes, provides that in reviewing

an agency decision based on a point of law, the appellate court must determine

whether the "agency has erroneously interpreted a provision of the law and

[whether] a correct interpretation compels a particular action." The standard of

review of an agency decision based on an issue of law is whether the agency

erroneously interpreted the law and, if so, whether a correct interpretation compels

a particular result. See 120.68(7)(d), Fla. Stat.; Florida Hospital v. Agency for

Health Care Administration, 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v.


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Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001);

Metropolitan Dade County v. State Department of Environmental Protection,

714 So.2d 512 (Fla. 3d DCA 1998).

This Court is not required to defer to the final order in this case on the issues

of law. The standard of review of legal issues involves more than a determination

whether the issue was correctly decided before the director of the DEO. A De novo

review allows this Court to be free to decide the question of law, without deference

to the decision of the DEO, as if this Court had been deciding the question in the

first instance. Although the DEO's decision is presumed to be correct, this Court is

free to decide the legal issue differently without paying deference to the DEO's

view of the law. Appellate courts are not required to defer to trial court on matters

of law. See, Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4 (Fla.

3d DCA 1993) (holding that an appellate court is not required to defer to a trial

court's determination of a foreign law). As the court explained in Walter v. Walter,

464 So.2d 538 (Fla. 1985), the correction of an erroneous application of the law

and the determination that the trial court abused its discretion are two separate

appellate functions.

CONCLUSION

The Final Order of the DEO should be respectfully reversed.


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY,that a true and correct copy of the foregoing Reply

Briefof the Appellant was E-mailed to the following this 1stday of June, 2016.

Courtney B. Wilson, Esq.

E-Mail: [email protected]

Secondary: [email protected]

LITTLER MENDELSON, P.C.Wells Fargo Center

333 SE 2nd Avenue, Suite 2700Miami, Florida 33131

Telephone: (305) 400-7500Facsimile: (305) 675-8497

Counsel for Appellee Raiser LLC

Daniel E. Nordby, Esq.

E-Mail: [email protected]

Secondary: [email protected]

SHUTTS & BOWEN LLP215 South Monroe Street

Suite 804Tallahassee, Florida 32301

Telephone: (850) 521-0600Counsel for Appellee Department of

Economic Opportunity

___/s/Darrin E. McGillis___________

Darrin E. McGillis,In Proper Person

STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2)

I HEREBY CERTIFY, that this Initial Brief of the Appellant has been

prepared in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure, using 14 point Times New Roman font.

/s/Darrin E. McGillis_____________

Darrin E. McGillis, In Proper Person

Darrin McGillis vs. Uber Technologies, Inc. Reply Brief Third District Court of Appeal

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