[Updated 2021] Pedro Fontes is a long time driver for Uber. His life changed forever on July 6, 2017 when he was shot in the head while driving for Uber. But for four years, Uber refused to pay him for his injuries.
Pedro began his evening on July 5th like any other night. A Wednesday night, Pedro was driving for Uber in the Boston area. Shortly after midnight (now July 6th) he accepted a fare from an Uber rider on Cushing Avenue, Boston. Uber did not provide him with any warning as to any dangers in the area of Cushing Avenue, nor did it offer any system, procedure, or other safety measures to alert or otherwise protect his safety in a high-crime neighborhood.
As most Uber drivers know, if you decline or cancel too many times you can be “deactivated” meaning you will no longer be able to make any money on the Uber platform.
At 12:22 am while waiting for his rider, Pedro was shot in the head by an unknown assailant. We don’t know if the shooting was random or if the rider was in on it. What we do know is that bullets and bullet fragments penetrated his skull and multiple regions of his brain, nearly killing him, and inflicting severe neurological damage.
Pedro was rushed to the Boston Medical Center where doctors were able to save his life. He remained hospitalized for weeks. It took months of rehab before he was able to eat, walk or even speak. Although he has made significant progress, his injuries are permanent. Doctors say he suffers from permanent nerve damage in his left leg and left arm, constant pain, permanent partial loss of vision in both eyes, impairment of cognitive function, physical disfigurement, post traumatic stress disorder and other debilities. He will need care for the rest of his life.
Prior to the shooting, Pedro was able to care for his two kids. He can no longer care for them or even fully enjoy their company. He also can’t work. His life has been shattered and torn apart.
What was Uber’s response?
Nothing. Uber did nothing to help Pedro and didn’t even cooperate with the police.
The only reason Pedro Fuentes was at 105 Cushing Street on July 6th is because Uber sent him there. Yet Uber refuses to take any responsibility for Pedro’s care. Had Uber acknowledged that Pedro was its employee, he would have been covered by the Massachusetts Workers Compensation Act. That means he would have been entitled to receive extensive benefits, including payment of his medical expenses, rehabilitation, injured employee compensation, and permanent impairment benefits. Even though he isn’t able to go back to work, he would have received money to help support his kids.
After getting nowhere with Uber, Pedro sued the company in July 2020. Even after being sued, however, Uber still refuses to pay. According to them, by agreeing to the terms of the online driver’s agreement, Pedro waived his rights to sue. Uber says that despite our constitutional right to seek redress of disputes in the courts, his case must be submitted to arbitration. Not only don’t they want to pay, Uber doesn’t want Pedro to even get his day in court.
What is Uber afraid of? Juries. We think that a jury would be more sympathetic to Uber drivers than a professional arbitrator who is dependent on Uber for work.
Unfortunately, most courts have sided with Uber. They say that a driver can waive his or her rights to a jury trial simply by clicking on a button in an app. A few courts in California and Massachusetts have shown a willingness to push back on the rider share giant.
How will the court in Massachusetts rule? We are closely monitoring.
Update: In January, Uber and Fontes announced the action had been settled. Typical with settlements against big corporations, the terms of the settlement can’t be disclosed. That means we can’t say if Pedro Fontes received $10,000 or $1 million.
When we first wrote about Pedro’s case, the court was deciding on whether the case could proceed or whether Pedro would be forced into arbitration. Massachusetts Attorney General Maura Healey had weighed in on behalf of Uber drivers. Although the state attorney general has no direct stake in Pedro’s action, it is clear that the state believes all Uber drivers should be treated as employees and therefore entitled to sick time, disability pay, workers compensation and health insurance.
Several courts have said that transportation drivers are exempt from the Federal Arbitration Act. That means that if Uber drivers are deemed employees as claimed by the State of Massachusetts (and not independent contractors as claimed by Uber) and if as employees they are interstate transportation workers, them Uber can’t force drivers to waive their right to sue.
Uber and Lawsuit Waivers
We have previously gone after Uber on behalf of thousands of Uber drivers in Wisconsin, Indiana and Illinois. Unfortunately, Uber was able to beat our lawsuits and many others in court or spend millions of dollars in lobbying expenses to get the states to classify drivers as independent contractors.
As a contractor, Uber doesn’t need to provide worker’s compensation, overtime, or even minimum wages.
Uber (and Lyft too) not only claims that drivers have no rights because they are independent contractors, they don’t even want the drivers to be able to sue and challenge those claims. At the heart of the dispute is the driver’s agreement.
To drive for Uber or Lyft, the driver must click on an app indicating that he or she has read all the terms of the agreement. Buried in the fine print is language that says,
“Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Uber Services shall be subject to arbitration… this Arbitration Provision also applies, without limitation, to all disputes between You and the Company or Uber, as well as all disputes between You and the Company’s or Uber’s fiduciaries, administrators, affiliates, subsidiaries, parents, and all successors and assigns of any of them, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with the Company …”
Periodically Uber changes the wording but the effect is the same. Unless you timely opt out you are stuck submitting any claims to arbitration. To better ensure that no lawyers take a case, Uber also requires drivers to waive the right to participate in a class action.
Some states are now trying to change the law to make it clear that Uber drivers are employees, not independent contractors. That would mean overtime pay, workers compensation, unemployment and other benefits. In the case of Pedro Fontes, the court was weighing whether there was an exception to the Federal Arbitration Act that could allow drivers to sue notwithstanding their agreement with Uber.
The pendulum is swinging back in favor of drivers but slowly. Had Fontes been an employee he would have been entitled to disability and workers compensation benefits on the day he was shot. He wouldn’t have needed a lawyer and had to wait 4 years.
Justice delayed is often not much justice at all. Especially if you have a family to feed and need medical treatment.
Why Are We Sharing This Story?
We no longer accept cases on behalf of Uber drivers. Until Congress and the states fix the problem, there are very few places where Uber can be sued. Unfortunately the media never covered Pedro’s story. In fact, it was only a legal publication, Law360, that wrote about it.
We still care about our former driver clients and are happy to share stories so that the public understands just how horrible a company Uber is.
*Although 99.9% of Uber drivers are great folks, there are a few bad apples. We do accept cases from members of the public who were assaulted by Uber or Lyft drivers or non driver employees of Uber and Lyft who were sexually harassed. To learn more, contact us online, by email or by phone . Cases accepted nationwide.