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It was a snowy evening in Paris when 2008 LeWeb Technology Conference attendees Travis Kalanick and Garrett Camp were trying to catch a taxicab. Frustrated with being stuck in the cold without a ride, the two eventually found a way back to their apartment on the outskirts of the city and started talking with a few other entrepreneurs about potential start-ups. Not surprisingly, an idea they discussed that night was a smartphone application, or app, that could pick up passengers the moment they requested a ride. Although neither Kalanick nor Camp probably knew it at the time, this simple idea would lead to the creation of Uber, one of the most popular ridesharing apps of the twenty-first century. ...

This Article considers whether Uber drivers are employees or independent contractors. First, this Article discusses the Uber app itself, its place in the sharing economy, and the current tests that distinguish employees from independent contractors. Next, it analyzes both Uber's arguments that its drivers are independent contractors, as well as the drivers' arguments that they are employees. After applying today's tests to Uber's business model, this Article argues that the laws do not provide a clear answer as to whether the drivers should be classified as employees or independent contractors. Ultimately, it recommends that the tests be applied on a case-by-case basis to consider the different types of individuals participating in the sharing economy, and that the tests be reconsidered in light of the tension between control and user safety that exists today.