By Riley Minkoff
On October 29, 2021, the California Public Utilities Commission (CPUC) issued proposed rulemaking decision R.12-12-011, a proposal that would approve a settlement agreement with Uber on the reporting of data on sexual harassment and assault. The agreement includes penalties of $9 million if they fail to respond to CPUC requests for data on those incidents listed in their 2019 Safety Report. The settlement agreement would be between the Commission’s Consumer Protection and Enforcement Division (CPED), Uber Technologies, Inc. (Uber), and the Rape, Abuse & Incest National Network, Inc. (RAINN). It would resolve whether Uber should be otherwise fined, penalized, or subject to other sanctions for refusing to thus far provide adequate information regarding sexual assaults and harassment arising from its passenger services.
If the proposal is adopted, it would render the decision imposing penalties against Uber for violation of the Administrative Law Judge’s (ALJ) December 19, 2019, and January 27, 2020 rulings (which required information regarding sexual assault and sexual harassment claims, including those now allegedly moot and withdrawn). Under the proposal, as noted above, Uber would pay $9 million to support safety initiatives that, according to the CPUC, would directly promote the public interest in passenger safety. These initiatives would include $5 million to the California Victims Compensation Board to be used for the victims of violence and sexual violence, specifically those who have been harmed due to the passenger carrier industry, $4 million for efforts to address physical and sexual violence in the passenger carrier industry, most notably to contracts managed by the CPED, and a $150,000 fine to the state’s General Fund. The CPUC would also require that Uber provide them with information on sexual assault and harassment on a regular basis, and the agency would also create a process where survivors could opt-in to make more of the information on their assault available to the CPUC.
The Commission began asserting jurisdiction over service by Transportation Network Companies (TNCs) in 2011–12. This led to the initiation of R.12-12-011 on December 20, 2012, which was an order instituting rulemaking on regulations relating to passenger carriers, ridesharing, and new online-enabled transportation services. That proposed rulemaking eventually resulted in D.13-09-045, which adopted rules and regulations to protect public safety while allowing new entrants to the transportation industry. That decision created reporting requirements with which each TNC, including Uber, must comply. As complaints about sexual harassment, misconduct, and assault from TNC drivers were reported to the CPUC, and since this proceeding remains open, the Commission expanded the scope of the proceeding to determine how TNCs were investigating driver-related sexual assaults and harassment, and what additional regulations and reporting requirements should be adopted.
On December 5, 2019, Uber released its US Safety Report, which raised concerns about the safety of passengers, specifically about sexual assault and harassment claims. Under the Commission’s jurisdiction to regulate TNCs, the assigned ALJ issued a ruling on December 19, 2019, ordering Uber to file and serve the US Safety Report in the instant proceeding and to “answer questions regarding alleged sexual assault and sexual misconduct incidents” relevant to Uber’s California transportation operations. In January 2020, Uber filed a copy of its US Safety Report, as well as a motion for reconsideration of the December 19, 2019 ruling. On January 27, 2020, the ALJ denied Uber’s motion for reconsideration.
This is not the first time Uber has failed to comply with D.13-09-045. In 2017, Uber was investigated after CPED allegations concerning its failure to comply with zero-tolerance rules in Safety Requirement D of the decision, relating to DUI policy. [23:1 CRLR 198] Additionally, on December 14, 2020, an ALJ issued a decision in this same ongoing proceeding, R.12-12-011, fining Uber $59 million for failing to comply with the earlier rulings on December 19, 2019, and January 27, 2020, regarding sexual assault and harassment claims. [26:2 CRLR 204] The instant proceeding would encourage Uber to once again comply with the safety and reporting requirements outlined in D.13-09-045.
This proposed decision will be on the CPUC’s December 2, 2021, Voting Meeting agenda, and unless and until the Commission votes to approve it, it will have no legal effect. Public comment is open on the proceeding’s Docket Card, and there are four public comments so far, all of which focus on the safety and accessibility components of the proceeding.