District Attorneys for Los Angeles and San Francisco recently amended their complaint in another existing lawsuit against Uber – this one about consumer protection.  You’ve probably seen the headlines, screaming about drivers with histories of murder, assault, child abuse, and countless other criminal horrors.  One issue in the suit concerns the background checks conducted by Uber and other representations regarding safety it has made on its website.  One of the District Attorneys contends that Uber has misled consumers by performing background checks that do not go far enough.  The initial lawsuit was filed in December, 2014, and since that time, Uber has scaled back the statements on its website and has continued to make improvements geared toward safety for both its riders and its drivers.  Is Uber really as unsafe as the headlines and district attorneys would have you believe?  In my View, the answer is a resounding “No.”

The comparison being made pits Uber versus taxi companies.  Uber’s screening services look at county and federal courthouse records and a multi-state criminal database going back seven years, the national sex offender registry, a Social Security trace, and motor vehicle records.  Most of the transportation industry – taxis included – run fingerprint data through the FBI database.  The crux of the argument against Uber’s practice is that you can lie about your identity, but you can’t fake your fingerprint.  The truth of the matter is that nothing is 100% effective.  Nevertheless, it seems Uber is being held to a higher standard.  Of course, there are other aspects to the lawsuit, but my sole focus here is from the employment lawyer perspective.

Let’s talk about Uber safety 

Rather than follow the sensationalism, let’s look at what Uber really does in terms of safety – especially from the view of the rider – because it’s not all about the background check.

• When I need a ride, I can start the app from a safe location, rather than hailing a cab from the side of a busy street or waiting outside to catch a ride.

• When my request for a ride is accepted, I am provided with the name and photo of my driver, the make and model of his/her car, the license plate number, and the driver’s rating.

• After I am picked up, I am shown the route to my destination and an ETA. I can follow along on a map so that I know we are going the right way.

• Uber uses GPS to record where I am going the whole time.

• I can use Share ETA on my app to create a text message with a link to my trip which I can send to friends and family who can see my current location as well as my anticipated arrival time.

• Drivers are not carrying cash, so they are not a target which lessens my risk further.

• I am covered by commercial liability insurance throughout my ride.

• Uber monitors the motor vehicle records of its drivers throughout their association with Uber.

• At the end of my trip, I am asked to rate my driver. The rating system allows Uber’s safety team to investigate any issues that arise. A consistently low rating will result in deactivation of the driver.

Let’s talk about background checks

Objectively, Uber makes some fair points about background checks in general.  Plenty of taxi and other transportation drivers have criminal histories.  We interact every day with people who have criminal background records.  Livescan (the fingerprint-based check), according to Uber, includes in its results people who have been arrested (which is certainly significant from the employment lawyer’s perspective).  Of course, arrests are not conclusive of criminal conduct; convictions are more the standard there.

The EEOC points out that there are two ways in which employer use of criminal backgrounds can result in violations of Title VII.  First, if the employer treats applicants with similar criminal histories differently based upon one of the protected traits, it violates Title VII.  Second, even when employers treat everyone the same with regard to criminal backgrounds, it may still run afoul of the law if the exclusionary rule it is applying disproportionately excludes people with protected traits from the job.  In those cases, the employer must be able to show that the exclusionary rule is job-related and consistent with business necessity for the position in question.

The point is that employers can hire people with criminal histories, so the fact that Uber may have drivers with those histories cannot – standing alone – allow one to conclude that Uber’s background check process is unsafe.  Our criminal justice system has the concept of rehabilitation as one of its mainstays, and the EEOC permits (in fact encourages) an individualized inquiry in these situations, including an assessment of the time elapsed and the nature of the job when deciding whether to exclude someone from a position with a criminal background.  More specifically, the EEOC says the employer should also consider how many offenses the person had, the age of the individual at conviction and release, their efforts to rehabilitate, and if the person has been doing similar work for another employer post-conviction without any criminal incident.

It’s not all negativity toward Uber

Many governments are getting into the action by dealing with Uber and ride-sharing via legislation and agreements.  This past June, Delaware entered into a Memorandum of Understanding with Uber, setting out requirements for Uber and drivers using its platform in the State.  Here are a few of the highlights:  Insurance coverage levels for Uber and its driver partners under the MOU exceed those required for taxi services; a multi-state and federal background check must be conducted on all drivers and certain offenses disqualify individuals from partnering with Uber; drivers must be re-certified annually to make sure they have not committed a disqualifying offense; Uber must annually verify that drivers are in compliance with licensure and vehicle inspection requirements.

In Illinois, lawmakers passed a commercial ridesharing arrangement this past February covering the insurance requirements for drivers and setting weekly hour limitations after which a chauffeur’s license, if available, is required or a background check by the dispatcher (ridesharing app) to ensure compliance with the law is completed.  These and other governmental entities are making it obvious that there are progressive means of dealing with these issues besides filing a lawsuit.

Views from an Uber consumer

When I step into an Uber vehicle, I don’t wonder whether my driver has been subjected to a background check any more so than when I step into a taxi.  There’s a certain level of risk that goes hand-in-hand with getting into a stranger’s car.  I do feel a lot safer and more secure riding with an Uber driver.  I know in advance who is picking me up.  I can watch my driver’s approach so that I know when I have to step outside.  I can give my friends the GPS tracking to monitor my trip.

It’s more than just my personal safety that Uber and Lyft and the others help to protect during travel.  Impaired people can hit an app button rather than get behind the wheel, making the streets safer because they are not driving on them.  And, every Uber driver’s vehicle I’ve ridden in has seat belts.  That’s more than I can say for the cab rides I’ve taken.

With new technology and new ways of looking at the world and how we live in it, the law must adapt to the new risks that arise.  That’s what progress is all about.  I, for one, want to live in a world where Uber can exist.  I can’t wait to see what comes out of San Francisco next.