« Teaching leadership and addressing gender inequality | Main | JOTWELL: Levy on Fisher and Larsen on virtual briefing »

Wednesday, September 04, 2019

Trade Secrets, FOIA, Research & Platforms

All of the above meet in today's hot story from Bloomberg on how Uber is claiming that the information that cities hold on names of Uber drivers is proprietary confidential information. It all started with an economist Peter Norlander, from Loyola Chicago business school who requested the names of Uber and Lyft license holders from the City of Chicago. The question he wants to ask in his study is a question that is very relevant to the hottest employment and labor law policy debates of the moment: how much overlap exists between the drivers of these two competitors. The reason this question is relevant to the policy debate on employee classification -- see my previous post on this here - is that an argument made in favor of independent contractor status [rather employee classification] of workers on these apps is that they have the freedom to work for multiple platforms simultaneously. Under default employment laws, this parallel work would be in tension with the common law employee duty of loyalty which assumes exclusive work with one company and not competitors [not to be confused with the debates on noncompetes which are about post-employment competition, not during employment].

So the the city told Norlander he can't have the data because making the names public would make it easier for competitors to poach drivers. Seriously? Labor market competition is something we want to protect actually.

While FOIA does have exemptions for trade secrets, names of workers - whether they are employees or ICs should not be a trade secret. There may be privacy concerns from the workers' perspective though I don't think this applies here, but open to think about that. But Uber shouldn't get to claim secrecy because it wants to prevent poaching. I am quoted on this toward the end of the article.

Posted by Orly Lobel on September 4, 2019 at 12:30 AM | Permalink

Comments

Orly, you may find interest here:

https://links.govdelivery.com/track?type=click&enid=ZWFzPTEmbXNpZD0mYXVpZD0mbWFpbGluZ2lkPTIwMTkwOTIzLjEwNTM4NjgxJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE5MDkyMy4xMDUzODY4MSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE2ODE4MDkzJmVtYWlsaWQ9ZWwtcm9hbUBiZXplcWludC5uZXQmdXNlcmlkPWVsLXJvYW1AYmV6ZXFpbnQubmV0JnRhcmdldGlkPSZmbD0mbXZpZD0mZXh0cmE9JiYm&&&101&&&https://www.justice.gov/opa/speech/assistant-attorney-general-makan-delrahim-delivers-remarks-public-workshop-competition

Posted by: El roam | Sep 26, 2019 11:56:48 AM

Orly, you may find interest here ( and links therein):

"Federal appeals court rules wage law protections apply to marijuana industry workers"

https://www.jurist.org/news/2019/09/federal-appeals-court-rules-wage-law-protections-apply-to-marijuana-industry-workers/

Posted by: El roam | Sep 24, 2019 3:30:05 PM

Orly, you may find great interest here:

"California just passed a bill turning 'gig economy' workers into employees. Here's what Uber and Lyft have said."

https://markets.businessinsider.com/news/stocks/uber-lyft-california-gig-economy-law-raises-prices-hurt-workers-2019-9-1028515655

Posted by: El roam | Sep 11, 2019 8:16:02 AM

Such a great post. For more info Dunedin Moving Company
Dunedin Moving Company is the local moving company in Clearwater and the surrounding city.
Our Location Dunedin Florida

Posted by: DunedinMovingCompany | Sep 9, 2019 11:18:55 AM

"Labor market competition is something we want to protect actually."

Is it not true that the normal operation of trade secret laws is to directly impede competition, though more often in the product markets? The defense of the laws presumably being that the indirect effects in encouraging investment outweigh those effects.

It does not strike me as obvious that the law would not protect trade secrets that prevent poaching of employees/contractors if it unquestionably protects trade secrets that prevent poaching of customers under certain circumstances.

Posted by: Jr | Sep 4, 2019 5:17:38 PM

Just further clarification ( concerning the possibility of agreement guaranteeing confidentiality):

Even if such academic research needs or should be published, it wouldn't bar confidentiality. For names of drivers can be censored and be replaced by simple codes ( like : numbers etc....).It is hard to see right now, why the actual names of drivers , would change much in such research.

Thanks

Posted by: El roam | Sep 4, 2019 6:01:09 AM

Important ,and yes , we have here certain novel issue. You are right to claim (although not explicitly claimed so ) that trade secrets is an objective issue or test , not wishful thinking of course.The point is, that disclosing the name of one driver is one thing, but the whole list is another one. Anyway, one should also consider that those drivers are independent contractors. As such, it may hurt their freedom of occupation generally speaking ( to contract and work with other firms) but:

We mix here free competition issue with the legitimate self interest of Uber. Uber, should not take care of it ( free markets). This is up to regulators. Uber on the contrary, should not disclose it, unless compelled to do it. Their duty is to win competition, not to be beaten by it ( their duty to share holders or whatever stakeholders).

But that argument of the 5th amendment ( taking clause) is pretty interesting. But one should pay attention, that this is an information, and disclosed to third party by the government, the government doesn't take it for its own public use( it wouldn't become its property). It is not like land. And anyway, third party not only wouldn't own it in no way ( but only use it, or, get used by it) but can be bound by agreement , to keep it confidential ( since it is for academic research).

Thanks

Posted by: El roam | Sep 4, 2019 5:24:53 AM

Post a comment