RECEIVED, 6/1/2016 3:35 AM, Mary Cay Blanks, Third District Court of Appeal

IN THE DISTRICT COURT OF APPEAL

FOR THE THIRD DISTRICT
STATE OF FLORIDA
DARRIN E. MCGILLIS
Appellant,
vs.
Third DCA Case No. 3D15-2758
DEPARTMENT OF ECONOMIC
OPPORTUNITY; and RAISER LLC,
dba UBER; ET AL.,

L.T. Case No. 0026 2834 68-02

Appellees.
____________________________/

APPELLANT'S REPLY BRIEF

__________________________________________
On Appeal from the final agency order of the
State of Florida Department of Economic Opportunity
Reemployment Assistance Appeals.
__________________________________________

Respectfully Submitted,
/s/ Darrin E. McGillis____
Darrin E. McGillis, Appellant
In Proper Person
P.O. Box 56-6091
Miami FL 33256
Telephone.: (305) 506-4411
Email(1): mcgillismusic@yahoo.com
Email(2): darrinmcgillis@gmail.com
i

PRELIMINARY STATEMENT
In this reply brief, the Appellant, Darrin E. McGillis shall be referred to as
the "Appellant". The Appellee, Raiser LLC shall be referred to as "Uber", and
the Appellee, the Department of Economic Opportunity shall be referred to as
"DEO". References to the record on appeal shall be by the symbol (R.) followed
by the page number.
ARUGUMENT
The Internal Revenue Service, "IRS" and U.S. Labor Department
regulations, as well as multiple decisions by the U.S. Supreme Court, notably in its
1992 decision in Nationwide Mutual Insurance Co. v. Darden, (90-1802), 503
U.S. 318 (1992) and other federal and state courts have long established that
employers must conduct a common sense economic reality check when making an
independent contractor classification.
A gig economy does not mean an economy without rules and regulations
that protect both driver and passenger. Employee protections exist for the benefit
of employees and the communities they serve. The fact that services now take
place across internet applications, like Uber, does not vitiate these employee
protections or make these protections less necessary. Unfortunately, the magnitude
of this generational threat is leading to hundreds of thousands of employees of
internet applications like Uber making less then minimum wage.
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This Court cannot in good conscience support this disastrous result on so

many citizens of the State of Florida tricked and/or induced into a bait and switch
promise of wages that do not exist. Uber has a long, long road to travel before it is
in compliance with State and Federal labor laws. Technology cannot erase an
employer's obligations to maintain a workers basic rights. 1
Economic Realities Test Applies to Independent Contractor vs. Employee
Relationship, as stated by the U.S. Department of Labor. (R.380), (R.379-393). For
employers classifying providers of personal services as independent contractors
rather than employees, the United States Department of Labor (DOL) has issued a
clear warning: In its view, most American workers are really employees. The
Departments Wage and Hour Division issued a 15-page interpretative guidance
memorandum on July 15, 2015, (R.379-393) seeking to clarify the sometimes
difficult question of who should be classified as an employee for purposes of
federal wage and hour laws.
1

Companies like Uber have a great profit incentive to classify people who work for
them as independent contractors. For instance, an employer must generally
withhold federal income taxes, withhold, match, and pay over Social Security and
Medicare taxes, and pay unemployment tax on wages paid to an employee, but not
to an independent contractor. Companies are not liable under respondeat superior
principles for the tortuous acts of independent contractors. And independent
contractors are not entitled to overtime pay, paid vacation or sick days, group
medical, dental, disability, or life insurance, or to any of the benefits flowing from
the many federal, state, and municipal laws that protect employees, such as the
FLSA, FMLA, Title VII, and state unemployment and workers compensation
laws. Also, independent contractors are not covered by the National Labor
Relations Act and cannot unionize under its protection.
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While most misclassified employees are labeled independent contractors,

increasingly employers are also classifying individuals rendering personal services
as owners, partners, or members of a limited liability company, instead of as
employees. Some employers intentionally misclassify employees as a means to cut
costs and avoid compliance with labor laws.
According to the DOL, employers must apply an economic realities test to
determine whether a worker is an employee or an independent contractor. Certain
key factors should be considered in light of the ultimate determination of whether
the worker is really in business for him or herself (and thus is an independent
contractor) or is economically dependent on the employer (and thus is its
employee). The classification issue is important because employees improperly
labeled as independent contractors miss out on legal protections like minimum
wage

and

overtime

pay,

reemployment

assistance

benefits,

Workers

Compensation insurance, and private group benefits.

In the guidance, Wage and Hour Division Administrator David Weil listed
the following factors as requiring case-by-case analysis to properly determine an
individuals classification, with each factor having to be examined and analyzed in
relation to one another, and no single factor being determinative:
Is the Work an Integral Part of the Employers Business?
Does the Workers Managerial Skill Affect the Workers Opportunity
for Profit or Loss?
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 How Does the Workers Relative Investment Compare to the

Employers Investment?
Does the Work Performed Require Special Skill and Initiative?
Is the Relationship between the Worker and the Employer Permanent
or Indefinite?
What is the Nature and Degree of the Employers Control?
Under the Fair Labor Standards Act of 1938 (FLSA), the scope of the
employment relationship is very broad, according to Mr. Weil.
The FLSA defines employee as any individual employed by an
employer, and employ includes to suffer or permit to work. This suffer or
permit concept has broad applicability, according to Mr. Weil, and is critical to
determining whether a worker is an employee and thus entitled to the FLSAs
protections. The suffer or permit standard was specifically designed to ensure as
broad of a scope of statutory coverage as possible, the guidance memorandum
states.
The memorandum goes on to state that Unlike the common law control test,
which analyzes whether a worker is an employee based on the employers control
over the worker and not the broader economic realities of the working relationship,
the suffer or permit standard broadens the scope of employment relationships
covered by the FLSA.

An agreement between an employer and a worker designating or labeling the

worker as an independent contractor is not indicative of the economic realities of
the working relationship and is not relevant to the analysis of the workers status,
according to Mr. Weil. [emphases added]. The ultimate inquiry under the
FLSA, the memorandum states, is whether the worker is economically
dependent on the employer or truly in business for him or herself. If the worker is
economically dependent on the employer, then the worker is an employee. If the
worker is in business for him or herself (i.e., economically independent from the
employer), then the worker is an independent contractor. See Administrators
Interpretation No. 2015-1, Wage and Hour Division (Dept of Labor July 15,
2015); (R.380), (R.379-393).
Counsel for Uber failed to inform this Court that his clients have settled the
U.S. District Court class action case of OConnor v. Uber Technologies, Inc.,
2015 WL 1069092 (N.D. Cal. Mar. 11, 2015) which appellant cited in his Initial
Brief at pages, 14, 16, 19, 21, 22, 23, 25, 34, 36, 37, 38, 39, 40 and 41. Boston
Attorney Shannon Liss-Riordan, Esq., who represented the Appellant in the
hearing before the Special Deputy was able to negotiate through mediation a One
Hundred Million Dollar payout by Uber to drivers located in California and
Massachusetts for misclassifying it's drivers as independent contractors. This
settlement was national news and the Court should be aware of this high profile
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settlement. The terms of the settlement can be found on "pacer" along with current
legal pleadings and rulings by the Federal Court in California. It is respectfully
requested that this Court take judicial notice of the California settlement and
its terms. A hearing before U.S. District Judge Edward Chen to review and
possibly approve the multi-million dollar settlement will take place on Thursday,
June 2, 2016, in California. It begs the question, that if Uber will spend One
Hundred Million Dollars to settle a misclassification lawsuit in California, why
would the State of Florida just bow to the illegal activities of Uber, while others
fight for justice for the underpaid, wrongly fired, drivers of Uber.
As correctly noted in the Initial Brief at (pages 43 - 44):
The standard of review that applies to an administrative decision based on a
point of law does not require the same degree of deference as a decision based on a
finding of fact. Section 120.68(7)(d), Florida Statutes, provides that in reviewing
an agency decision based on a point of law, the appellate court must determine
whether the "agency has erroneously interpreted a provision of the law and
[whether] a correct interpretation compels a particular action." The standard of
review of an agency decision based on an issue of law is whether the agency
erroneously interpreted the law and, if so, whether a correct interpretation compels
a particular result. See 120.68(7)(d), Fla. Stat.; Florida Hospital v. Agency for
Health Care Administration, 823 So.2d 844 (Fla. 1st DCA 2002); Parlato v.
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Secret Oaks Owners Association, 793 So.2d 1158 (Fla. 1st DCA 2001);
Metropolitan Dade County v. State Department of Environmental Protection,
714 So.2d 512 (Fla. 3d DCA 1998).
This Court is not required to defer to the final order in this case on the issues
of law. The standard of review of legal issues involves more than a determination
whether the issue was correctly decided before the director of the DEO. A De novo
review allows this Court to be free to decide the question of law, without deference
to the decision of the DEO, as if this Court had been deciding the question in the
first instance. Although the DEO's decision is presumed to be correct, this Court is
free to decide the legal issue differently without paying deference to the DEO's
view of the law. Appellate courts are not required to defer to trial court on matters
of law. See, Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4 (Fla.
3d DCA 1993) (holding that an appellate court is not required to defer to a trial
court's determination of a foreign law). As the court explained in Walter v. Walter,
464 So.2d 538 (Fla. 1985), the correction of an erroneous application of the law
and the determination that the trial court abused its discretion are two separate
appellate functions.
CONCLUSION
The Final Order of the DEO should be respectfully reversed.

CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true and correct copy of the foregoing Reply
Brief of the Appellant was E-mailed to the following this 1st day of June, 2016.
Courtney B. Wilson, Esq.
E-Mail: cwilson@littler.com
Secondary: kljackson@littler.com
LITTLER MENDELSON, P.C.
Wells Fargo Center
333 SE 2nd Avenue, Suite 2700
Miami, Florida 33131
Telephone: (305) 400-7500
Facsimile: (305) 675-8497
Counsel for Appellee Raiser LLC

Daniel E. Nordby, Esq.

E-Mail: DNordby@shutts.com
Secondary: MPoppell@shutts.com
SHUTTS & BOWEN LLP
215 South Monroe Street
Suite 804
Tallahassee, Florida 32301
Telephone: (850) 521-0600
Counsel for Appellee Department of
Economic Opportunity
___/s/ Darrin E. McGillis___________
Darrin E. McGillis, In Proper Person

STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2)

I HEREBY CERTIFY, that this Initial Brief of the Appellant has been
prepared in compliance with Rule 9.210(a)(2) of the Florida Rules of Appellate
Procedure, using 14 point Times New Roman font.

/s/ Darrin E. McGillis_____________

Darrin E. McGillis, In Proper Person