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In the days since Uber announced that it had reached a settlement agreement with U.S. drivers who had sued to be reclassified as company employees, the attorney representing the drivers has seen a flood of feedback. But not all of the notes — from more than 1,500 drivers — commended her work.
Fewer than 100 of the drivers who wrote to Shannon Liss-Riordan — who represented drivers in both the California and Massachusetts lawsuits — were angry that she chose to settle, maintaining their status as independent contractors. And now, Liss-Riordan is responding.
“I understand your frustration about this case being settled,” she wrote in a letter she circulated to these drivers. “I have read and listened to many drivers who are upset and disappointed that the case has been settled. I agree with much that has been said about how Uber drivers should be classified as employees and have been treated improperly under the law. Of course, I agree; I have spent years making these arguments myself.”
There was a lot riding on the case for both sides. Had Uber been forced to reclassify its drivers from independent contractors to employees, the company may have had to significantly alter its business model. In exchange, drivers would receive employer-sponsored benefits and insurance and would no longer have to bear the brunt of their operating costs.
For a while, Liss-Riordan was faring pretty well. She had managed to convince a judge to classify the case as a class-action suit and even question Uber’s arbitration clause. But the legal risks Liss-Riordan expected to face as the case proceeded into the next phase may have undone all that she had accomplished.
For one, Uber was granted its appeal of the ruling that deemed its arbitration agreement in drivers’ contracts unenforceable, delivering a blow to Liss-Riordan’s case.
“This was not a good sign,” she wrote. “The Ninth Circuit, having granted this petition, was most likely about to delay the trial until after the appeal. Had we won before the Ninth Circuit, Uber made clear it would try to take this case to the U.S. Supreme Court, which has not been particularly friendly to workers in recent years and is responsible for the rise and enforcement of arbitration clauses containing class action waivers, which have prevented workers from achieving successes like we have achieved in this case.”
This, in turn, would have led the trial to be decided by a jury, not a judge.
“Jurors come in with biases, and Uber is very popular in San Francisco,” she wrote. “We may have won the trial before a jury, and we may not have.”
Several drivers have accused Liss-Riordan of “selling out” in exchange for her cut of the settlement. Others accused her of being afraid to take the case to trial. But Liss-Riordan contends settling was the right thing to do.
“So I had to balance all these risks in considering whether what Uber was offering was substantial enough, and would benefit the drivers enough, not to risk everything we had achieved and roll the dice with the Ninth Circuit (and possibly the Supreme Court) and a jury,” she continued. “I did not settle this case because I do not like trials or I am afraid of them. I love trials … And given what I was able to negotiate Uber to agree to for this settlement, I made the reasoned judgment (in consultation with the drivers who were the plaintiffs in this case) that that was too much to risk.”
The issue of whether drivers are independent contractors or employees, importantly, has still not been decided. But the settlement essentially lets Uber continue to treat them as independent contractors regardless.
Liss-Riordan ended her letter on this note: “I know you and many others are looking forward to the day for that to be decided. And so am I. But settling this case was, in my best and experienced legal judgment, given what Uber agreed to in monetary and non-monetary concessions, the right thing to do.”
This article originally appeared on Recode.net.
