Imagine that you’re an Uber driver. You wake up early to catch the morning commuter crowd, only to find on your phone an updated, 27-page, single-spaced Technology Services Agreement. Without agreeing to the terms, you can’t use the app. Without the app, you can’t make your living.
Chances are, you’ll press “I agree.” The app makes it even easier by allowing you to agree without opening the document.
Uber drivers don’t have to imagine this scenario. Among the many provisions included in the update of November 25, 2019, were clauses requiring drivers to settle disputes through a private arbitration company paid by Uber and prohibiting them from joining class-action lawsuits. Buried in the legalese, where few drivers would find it, was an opt-out clause to the arbitration provision.
If they pressed the “I agree” button, drivers still had 30 days to opt out. But this only helped if they knew what they clicked, why it might be in their interests to opt out, and that they had the option to do so.
Uber fought the opt-out clause in court and lost. In an effort to make the process more difficult, the company argued in open court that creating a designated e-mail address for opting out was too technically difficult to implement and therefore imposed on the company an unreasonable burden.
Grapple with the Gray
List two or three reasons defending Uber’s policy.
List two or three reasons against Uber’s policy.
Is there another alternative for either the company or the drivers?
Having weighed the options, what would you do if you were an Uber driver?
Gray Matters
In some cases, it’s hard to see both sides of an issue. Companies and corporations have long been accused of favoring arbitration, both because they can choose the arbiter and because they can minimize negative publicity.
To the extent this may be true, it becomes a classic case study in ethics. Most of us click user agreements without reading them carefully— assuming we read them at all. In many cases, the stakes are small, so we don’t worry. But as potential risks increase, so does our responsibility to know what rights we may be giving away when we sign or click.
Companies know that we don’t have adequate time, inclination, or legal understanding, and they take full advantage of that knowledge. In the case of Uber, sending out the updated agreement early in the morning merely compounded injury with insult, forcing drivers to choose due diligence at the expense of doing their jobs. Consciously making it difficult to opt out is indisputably an act of bad faith.
Uber is a brilliant business model that should benefit all parties and provide the ultimate win–win. It’s disheartening to see a company looking for an opportunity to take advantage of drivers without whom it could not function.
Moreover, as a commuting consumer, what is one to do? To boycott Uber for unfair practices toward drivers harms the drivers themselves. There’s also the complication of urban taxi drivers who paid a small fortune for their licenses, only to be undercut by the tech upstart. Should our concern for them motivate us to forgo the convenience of Uber and pay their higher rates? When should government regulators intervene to protect established entrepreneurs from the inevitable alliance of technology and free enterprise against which they have no way to fight back?
When a culture is built on principles of ethics, these kinds of thorny questions will be addressed at the outset rather than fought over in court after the fact. Creative solutions are often available. But they rarely emerge from legal combat, and never from thinly disguised efforts to manipulate circumstances in our favor at the expense of others.