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Uber changes direction on drivers’ criminal history

Uber drivers with decades-old drug convictions were barred from the company's app because of a strict Delaware law.

Thomas Daniels, who received a commuted sentence from President Obama two years ago, was working as an Uber driver. Last month, Uber told him that convictions that are now more than 20 years old were prompting them to kick him off the app. Lawyers say this could be against a Philadelphia ordinance designed to protect released offenders from employment discrimination. He is pictured in Philadelphia, PA on May 10, 2018. DAVID MAIALETTI / Staff Photographer
Thomas Daniels, who received a commuted sentence from President Obama two years ago, was working as an Uber driver. Last month, Uber told him that convictions that are now more than 20 years old were prompting them to kick him off the app. Lawyers say this could be against a Philadelphia ordinance designed to protect released offenders from employment discrimination. He is pictured in Philadelphia, PA on May 10, 2018. DAVID MAIALETTI / Staff Photographer Read moreDavid Maialetti

Uber is making a U-turn on a policy that put out of work at least five Pennsylvania drivers, and possibly more, who had drug-related convictions that in some cases were decades old.

The San Francisco-based company's policy, prompted by a Delaware law that bars people with certain kinds of drug convictions from driving, was out of step with laws that legalized ride-share companies in Pennsylvania. A lawyer representing four affected drivers argued that the policy may have violated a Philadelphia ordinance that prevents people from being denied work because of drug convictions that are more than seven years old.

"Saying a driver who signs up in Philadelphia is restricted from driving because of a Delaware law ignores Pennsylvania law that says otherwise," said Michael Hollander, a lawyer for Community Legal Services of Philadelphia.

Uber in April began cutting Pennsylvania drivers from using its app if they had drug-related convictions that it believed violated the Delaware law. Pennsylvania drivers may at times transport passengers into or out of neighboring states, and Uber wanted its drivers to be in compliance with those states' laws. The company does have the ability, though, to create digital "fences" that would restrict a driver from using the Uber app within those fenced-off areas.

In an email Monday, Uber said that the difference between Pennsylvania and Delaware laws was a unique situation and that it would offer to reinstate those drivers and block them from doing business in Delaware.

"Currently affected driver-partners will be reassigned in our system so that they can make pickups exclusively in the states where they meet the background check requirements," Danielle Filson, a company spokeswoman, said in an email.

Uber's response to the Delaware law came to light after a story in the Inquirer and Daily News about a driver barred from its app who had received clemency from President Barack Obama. That driver, Thomas Daniels, said Monday that he has since regained access to the Uber app.

>> READ MORE: A president gave him clemency, but Uber kicked him to the curb

Uber cut the Pennsylvania drivers as part of a revised background check procedure that now includes annual checks on driving records and criminal history.

"We are constantly reviewing our practices and procedures to enhance compliance and safety," Filson said.

Lyft did not respond to questions about how it was handling the differences between the two states' laws.

Fewer than 1 percent of Uber's estimated 20,000 drivers in the Philadelphia region were affected by the company's response to the 2016 Delaware law, Filson said, but she did not provide a specific count. She also did not say when these drivers would be reinstated.

Just allowing them back on the app does not make up for the money they lost, Hollander said, and he is seeking back pay from Uber for his clients.

CLS has also contacted the Pennsylvania Attorney General's Office, which is looking into the issue.

"Our Fair Labor Section under Attorney General [Josh] Shapiro is investigating this matter,"  spokesman Joe Grace said, "and in collaboration with other interested parties, we hope to reach a resolution that is favorable to Pennsylvania workers."

Two drivers affected by the policy were baffled when they were suddenly cut from the app for a criminal history that had previously not been a problem, and after what they believed was standout service as drivers. Both men, who asked that their last names not be used so their criminal histories wouldn't hurt their ability to get jobs in the future, and Daniels have not been convicted of a drug-related crime in decades.

Ronnie, 47, of Philadelphia, had such high hopes for Uber driving that he embraced the work as a full-time job. He has not had a criminal conviction since 2000, but his history has made employment difficult, he said. He was making about $40,000 a year driving for Uber in the past 2½ years, he said. By the time he paid for gas, his car loan, insurance, and maintenance, his take-home was roughly half that, but it was still enough for him to stop receiving welfare payments more than a year ago.

"I didn't even go back and apply for welfare for food stamps," he said. "I got used to making money and not having to do that."

He was so optimistic about driving for Uber that in September 2017 he bought a $60,000 hybrid Acura MDX with seats for seven passengers, which would allow him to drive for the ride share business' higher-end services, such as UberSUV. He hoped the additional money through the more lucrative service and other side jobs should have covered the $1,100-a-month car payments and insurance.

Ronnie said he had a five-star rating as a driver. He invested in the safety of his passengers, he said, even installing snow tires in the winter.

"There's no way in the world I would have gotten a new truck because Uber was my main source of income," he said. "I even sent them an email saying, 'This is how you treat your five-star drivers?' "

He has not yet heard from Uber that he can again use the company's app, he said Monday.

The other driver lost his access to Uber's app over a marijuana possession charge from 1974. The violation was so minor that he was not incarcerated, and he has had no criminal convictions in Pennsylvania since. Jerry, 68, said the $300 a week he was making from Uber was a critical supplement to Social Security.

"I got a hole in my stomach," he said. "Uber support is basically nonexistent for drivers."

He, too, had not yet heard from Uber about whether he would again be able to use the app.

Uber was reaching out to drivers affected by the policy this week, the company reported, to give them the option of having their background check run again solely based on Pennsylvania law.

Delaware's ride share legislation bars anyone with certain violent felony convictions, no matter how old, from using a ride share app. Those felonies include convictions for possession of certain volumes of drugs.

It's not unusual that drug crimes are labeled as violent felonies, even if the crime itself did not involve the person convicted directly injuring anyone else. The rationale, said Judy Ritter, a law professor at Widener University School of Law in Delaware, is that the drug trade is often accompanied by violence.

A lot of jurisdictions "see the link between drug sales and violence and classify them accordingly," she said.

>> READ MORE: At local colleges, criminal records still hold applicants back

There's also a question about how deeply Uber looked into the details of the convictions in their drivers' pasts.

The background checks are conducted by a San Francisco company, Checkr, and drivers who have been cut off from the app have received a list of the offenses that led to their termination. But Pennsylvania and Delaware criminal codes differ, and it's unclear whether the drug offenses cited by Uber in cutting off drivers are serious enough to warrant dismissal even under Delaware law.

The Philadelphia Parking Authority, which regulates the ride share industry in the city, has not received any complaints about drivers being kicked off the app but said it would be interested in hearing from the people being represented by CLS.

Uber recognizes itself as a potential stepping stone for people with criminal histories trying to find stable work, Filson said. And for Ronnie it's been a godsend. His convictions for dealing cocaine occurred before he was old enough to vote.

"I started getting locked up when I was 18," he said. "I thought that was the way out of poverty, I guess. I was making a living for myself."

That activity, though, has made it difficult for him to find work or even a place to live ever since.

Department of Justice data suggest that as many as one in three Americans have some sort of criminal history, and even if those incidents didn't lead to incarceration, they can create profound consequences for the rest of their lives.

Delaware advocates for people with criminal histories say what's happened with the Uber drivers is the kind of roadblock they've seen in other industries, one of the reasons they are pushing legislation in that state to make it easier to get a criminal conviction expunged.

"These kinds of restrictions on employment and licensure are scattered throughout the Delaware code," said Karen Lantz, a staff attorney with the American Civil Liberties Union of Delaware. "It's not just a problem for drivers. It's a problem for other places, too."