The big problem with Uber’s no-gun policy for drivers

The U.S. saw another tragic mass shooting Sunday, when Jason Brian Dalton, an Uber driver in Kalamazoo, Mich., allegedly shot and killed six people and severely injured two others for currently unknown reasons.

It’s unclear if a more thorough background check would have prevented Dalton—who had no criminal record, but a spate of driving violations in his past—from driving for the service. But the shooting spree has resurfaced questions about the stringency of Uber’s background checks, which have long faced criticism for inadequately weeding out potentially dangerous drivers.

According to Uber, “All drivers in the U.S. must provide their license and vehicle documentation before being able to drive with Uber. They’re also required to go through a pre-screening process that includes a review of their motor vehicle records and a search through criminal records at the county, state, and federal levels.” Uber does not fingerprint its drivers.

In 2014, San Francisco and Los Angeles filed a suit against the company in 2014 over their security screening tactics, arguing that Uber’s methods allowed dangerous criminals to slip through the cracks. San Francisco District Attorney George Gascón said last year that because Uber’s background checks only go back seven years, “if someone was convicted of kidnapping eight years ago, and they were just paroled last week—they just got out of prison—the Uber background check process will not identify the person as a convicted kidnapper.” The New York Times reported at the time that according to the DAs, Uber employed 25 drivers with criminal backgrounds despite putting them through its security checks. And Gascón added that roughly 30,000 registered sex offenders weren’t listed in the database Uber draws from in conducting the checks.

And earlier this month, the ride-share company settled two class-action lawsuits for $28.5 million that alleged that the company promised safe rides they couldn’t deliver. According to the plaintiffs, Uber trails far behind industry standards in terms of background and security checks, something Uber drivers have allegedly confirmed themselves.

On a recent press call following the Kalamazoo shootings, Uber officials said they stand by their policy and don’t intend to alter screening processes.

The Kalamazoo shootings also bring into focus a relatively new facet of Uber’s security measures: an anti-gun policy that appears effectively impossible to enforce. If Dalton was, as reported, picking up fares between shootings, he was violating Uber’s official firearms prohibition policy (emphasis ours):

We seek to ensure that everyone using the Uber digital platform—both driver-partners and riders—feels safe and comfortable using the service. During a ride arranged through the Uber platform, Uber and its affiliates therefore prohibit possessing firearms of any kind in a vehicle. Any rider or driver found to have violated this prohibition may lose access to the Uber platform.

According to The New York Times, officers found a semiautomatic handgun that matched evidence from the shootings in Dalton’s car soon after the killing spree.

Weapons prohibitions policies are generally hard to enforce, and Uber is not alone in banning firearms. Lyft, another ride-sharing service, has a similar policy, and New York City taxi drivers, operated by the city’s Taxi and Limousine Commission, are not allowed to carry weapons in their cars. In all cases, no-guns policies for ride-sharing and taxicabs operate in large part on an honor system, making the question of enforcement difficult to answer and specific to the service.

Uber adopted its no-guns policy as recently as June 2015. At the time, company representative Matt McKenna told The New Republic, “We have adopted a no-firearms policy to ensure that both riders and drivers feel safe and comfortable on the platform. We made this policy change after assessing existing policies and carefully reviewing recent feedback from both riders and driver-partners.” Up until then, Uber drivers and passengers were subject to state laws on carrying firearms.

The policy immediately raised questions, especially in states like Texas (and Michigan) where residents are allowed to carry a concealed weapon with the proper license.

In an online forum, Uber drivers discussed how to handle the new policy. One said:

Being in Texas – having a CHL [Concealed Handgun License] myself, there is no way I’m conforming to this policy, and how am I supposed to enforce this with my pax? Seems like a BS policy put in place to pander to the media, I really hate when companies do this… I’m considering quitting and not using uber anymore when I travel, haven’t decided and in the meantime, I’ll continue to carry in my car.

Another asked, “How is Uber supposed to enforce this? Afterall we are in Texas—more people than you think are valid and legal CHL holders. They’re treading on thin ‘independent contractor’ logic by making such a statement about 1) drivers who aren’t employees and 2) vehicles the company doesn’t own.” Another wrote, simply, “they can not enforce this.”

Indeed, it’s hard to imagine how Uber would enforce its own policy given how the company operates: Uber’s primary selling point to prospective drivers is to be their own boss, using their own car to respond to fares directly, cutting out middleman managers and dispatchers who could conceivably check for guns in vehicles.

Uber has let drivers go for violating the ban, but those cases all seem to have been brought to the company’s attention after a gun was fired: The Trace reports that at least two drivers have been fired after discharging their weapons in altercations with passengers.

Evan J. Spelfogel, a labor attorney at the New York-based Epstein Becker & Green, P.C., who represents management in employment disputes, agreed that practically, this policy is more about providing grounds to terminate a relationship with a violator than it is about actual prevention. “Uber might announce this rule, but as you say it’s going to be very difficult to enforce,” Spelfogel said in a phone interview. “As a practical matter,” he continued, “if a driver or a passenger is in the vehicle there’s no way for anyone at Uber’s HQ to know that a passenger or a driver has a gun in his possession… you’re talking about a situation where Uber is going to be enforcing that rule, if at all, when an incident has occurred.”

It’s arguable that the policy-as-deterrent model works best when the stakes are high: A New York City taxi driver risks their coveted and very, very expensive taxi medallion that they’ve paid for out-of-pocket by carrying a gun in their cab.

And then there’s the question of the driver’s safety. Some Uber drivers contend that here’s little incentive to abide by Uber’s no-gun policy anyway because they say the company doesn’t do enough to protect its drivers. The Trace reports:

One Reddit user who claims to drive for Uber tells The Trace he carries a concealed weapon on the job in full knowledge of Uber’s policy. “I carry because I would much rather lose the ability to work with Uber than be robbed, physically assaulted, or need to defend myself and be unable to,” he wrote in a message.

The same Uber-driving Redditor also told the Trace he doesn’t expect Uber to watch out for his safety, so prefers to fend for himself (by carrying a gun):

The driver… [argued] that Uber’s business model “relies on the low cost of drivers providing their own vehicles with very little need for modification.” He added, “I think they don’t really have any responsibility to protect their drivers. Every person is responsible for their own safety.”

Employees who feel protected by their employers might not feel the need to carry a gun. The TLC, for instance, installs dividers between the back and front seats that would block violent passengers from attacking a driver. That might not be a foolproof method to protect its drivers, but it sends a clear signal that the TLC is willing to invest in protecting its employees, and in the relationship between the commission and its drivers.

To offer its drivers (and passengers) this type of protection, Uber would have to take on more responsibility for its drivers, like classifying them as full-time employees (as opposed to contractors), something the company has been fighting to avoid.

But Benjamin Sachs, Kestnbaum Professor of Labor and Industry at Harvard Law School, sees Uber’s anti-gun policy as a clear indication that the company is already behaving like a traditional employer.

He sees Uber’s punitive measures as comparable to that of any employer’s: “You set the rule and you discipline people or terminate them.” The specifics of how that actually works, he contends, are a problem not contained to Uber. “In the modern economy there are lots of employers, employment-relationships where there is not very much if any direct supervision.”

Michael Litrownik, an attorney in New York with the workplace advocacy firm Outten & Golden LLP, thinks that a more involved relationship between Uber and its drivers could make the policy enforceable. “Uber is in communication with passengers—if a passenger notices that there’s a gun somewhere in the car they could send an email to Uber.” Uber could take it a step further, he said, by adding a “report a weapon” button to their app. That technology could be flipped to allow drivers to do the same. Or, he suggested, the company could send inspectors into the field to spot check drivers and check in on passengers.

The problem with this solution is that the more control Uber exerts over its drivers and their conduct, the stronger the case that Uber drivers should be considered employees rather than independent contractors.

All said, Uber makes it very clear that it won’t be held responsible for their customer’s safety. (Uber did not respond to multiple requests for comment on this story.) From the service’s terms and conditions:

Uber does not guarantee the quality, suitability, safety, or ability of third party providers. You agree that the entire risk arising out of your use of these services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.

While the TLC, a government regulatory authority, does not have a comparable terms of service, it does have a Passenger’s Bill of Rights:

Passengers who feel that their drivers didn’t behave appropriately are invited to contact the TLC.

It’s hard to speculate how changes to Uber’s policies might have affected the terrible outcome of Sunday’s shootings in Michigan. But the company’s approach to guns is very much reflective of the current state of firearm safety legislation in this country, where we have an abundance of guns, but few laws that effectively protect people from their misuse.

Danielle Wiener-Bronner is a news reporter.

Ethan Chiel is a reporter for Fusion, writing mostly about the internet and technology. You can (and should) email him at [email protected]