In his first case with the Third Circuit, a Trump appointee heard an appeal Tuesday of an unsuccessful federal wage class action against Uber.

Led by Ali Razak, the drivers here are fighting for a reversal after U.S. District Judge Michael Baylson granted Uber summary judgment last year.

Keller Lenkner attorney Ashley Keller was unwavering at the hearing Tuesday in Philadelphia when U.S. Circuit Judge David Porter asked to what degree his clients see their Uber gigs as a “side hack.”

“This is not a side gig for my clients,” said Keller. “They rely on Uber to put food on their tables.”

Porter, who was confirmed to the bench in October, presided over the hearing this morning with Chief U.S. Circuit Judge D. Brooks Smith and U.S. Circuit Judge Joseph Greenaway Jr.

Urging this panel to affirm, Robert Pritchard of Littler Mendelson argued this morning Uber requires all drivers to sign an agreement that says they are considered independent contractors.

“We can’t schedule them, we can’t tell them to go offline and we can’t tell them where to go,” Pritchard said.

Rejecting claims by Keller that Uber can fire its drivers, Pritchard said the truth is less rigid: if a driver does not accept three rides in a row, Uber will turn the driver offline, but the driver may come back online at any point.

“My colleague uses the word ‘fired’ to make it sound like employment,” Pritchard said of the drivers’ lawyer.

Keller noted that he himself uses Uber three to four times a day, and has “immense respect” for how Uber operates, but feels that Uber could improve how it helps it drivers.

“Uber doesn’t tell the drivers where they’re going or how much they’ll make until the driver hits the ‘begin ride’ button,” said Keller.

If the drivers want to survive summary judgment, however, Smith reminded Keller that they must show that something is in dispute.

“Let’s address the elephant in the room,” Smith said. “There is a contract.”

Judge Smith wondered as well how the court could find a solution that satisfies all parties.

“How does a business owner craft a business model that appeals to people using it as a side gig and those trying to make it a full-time occupation,” said Smith asked.

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