The following piece by Maurice Emsellem of the National Employment Law Project was originally published on the Huffington Post.
Uber’s ruthless expansion strategy has put state and local legislators in the middle of the debate over regulation of the on-demand, ride-hailing workforce. Laws requiring background checks for drivers, which can restrict access to Uber’s core asset, are now a central theme of the regulatory battle, focusing specifically on the use of state and federal criminal history databases that require fingerprinting of ride-hailing drivers.
Indeed, Uber and Lyft recently chose to abandon the Austin, Texas market rather than comply with local laws requiring taxi drivers to undergo fingerprint-based background checks (56 percent of Austin voters rejected an initiative to exempt on-demand companies from the city’s law). And in New Jersey and Chicago, where similar measures are now being actively debated, Uber retained former U.S. Attorney General Eric Holder to lobby against the bills by challenging the accuracy and fairness of fingerprint-based FBI background checks (which is an issue that NELP has championed as an advocate of bi-partisan federal reform legislation).
To help inform the debate, it’s important to first clarify that “fingerprinting” is a shorthand term referring to background checks that require an individual’s fingerprint (usually captured by means of “livescan” technology) to access either a state criminal history repository or the FBI database, which collects data from the state and local systems. In contrast to name-based checks conducted by commercial background check companies, fingerprint-based checks are less vulnerable to misidentification. In addition, private employers typically cannot access the databases requiring fingerprinting of the workers unless authorized by a federal, state, or local occupational licensing law, like the ride-hailing laws regulating taxi drivers. Instead, with varying degrees of accuracy, the commercial background check companies collect criminal history data from the local courts, the states, and “aggregators” of criminal history data.
Last week we posted a letter sent by former Attorney General Eric Holder to the Chicago City Council on behalf of Uber and Lyft, urging that it not require Uber and Lyft to subject their drivers to FBI fingerprint-based background checks applicable to taxi operators. His main argument was that FBI records are incomplete and misleading, and that they have a discriminatory impact on minorities. It now turns out that the campaign to free these ride-sharing companies from regulatory restrictions is broad-based: Holder has reportedly written to officals in New Jersey and Atlanta considering similar measures, and other former Obama officials are also working for Uber.
In recent months, heightened attention has been paid to the background check practices of the ride-sharing company Uber. Concerns about the safety of Uber services prompted the District Attorney’s Offices of San Francisco and Los Angeles Counties to file suit last December against Uber for misleading customers about the scope of its driver background checks. As discussed in a previous post, Uber has largely resisted efforts by legislators to mandate more intensive background checks, but the pressure continues to mount.
This pressure for enhanced background checks has raised another area of concern: the manner in which Uber conducts background checks, and the impact of its employment practices on drivers and prospective drivers. At the end of 2014, our organizations, the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area and the law firm Goldstein, Borgen, Dardarian & Ho, filed a putative, nationwide class action lawsuit against Uber, based in part on its violation of federal and state background check laws.
The background checking policies of Uber and other ride-sharing companies like Lyft and Sidecar are again in the news, after an Uber driver with an extensive criminal record allegedly raped a female passenger in New Delhi. Other horror stories of cab rides from hell with these popular “taxi aggregators” are surfacing. The New York Times reports that background check requirements for taxi drivers vary widely by jurisdiction, but are “generally more rigorous” than the sketchy services used by Uber and its competitors, and “usually include searches of private databases like F.B.I. records.” (Note to self: Must inform the “paper of record” that the FBI records system is not a “private database.”)
Uber et al. have so far successfully resisted most legislative efforts to require them to perform particular kinds of background checks using particular kinds of background checkers, using the good offices of well-connected lobbyists to avoid this annoying speed bump on their road to a public offering. But episodes like the New Delhi rape, and lawsuits for misleading consumers about the kinds of checks they do, may bring them around to a more responsible position. Read more