Uber Drivers Don’t Need NLRB, Ride-Hail Driver Groups Say

May 15, 2019, 10:46 AM

Uber and Lyft drivers’ organizing efforts won’t be hurt by the recent determination that Uber drivers aren’t employees under federal labor law, according to several regional ride-hail driver organizations. Campaigns to improve driver pay and working conditions will continue regardless, they said.

It’s not a surprise that the National Labor Relations Board under the Trump administration would say that drivers for Uber Technologies Inc., Lyft Inc., and other ride-hail app companies are not covered by the National Labor Relations Act, the driver coalitions said. The groups developed strategies based on being classified as independent contractors that fall outside the scope of the NLRA, they said.

“Drive United was founded to build power and improve working conditions for drivers,” said Taylor Woods, a spokesman for the group of hundreds of ride-hailing drivers in the Washington, D.C., area. “It wasn’t founded with expectation that the drivers’ legal employment status would change.”

The NLRB general counsel’s office said in an advice memo made public May 14 that Uber drivers are independent contractors rather than employees with rights under the NLRA. That determination effectively means that, for the time being, the agency will dismiss petitions to unionize Uber drivers and unfair labor practice charges against Uber. The general counsel’s office will likely view drivers for other ride-hail app companies the same way.

An Uber spokesman said in an email that the company is “focused on improving the quality and security of independent work, while preserving the flexibility drivers and couriers tell us they value.”

The decision by the general counsel’s office to make the NLRB a no-go zone for Uber drivers comes on the heels of ride-hail driver strikes earlier this month in New York, Los Angeles, and eight other cities. Driver alliances organized the demonstrations, which involved drivers logging off their ride-hail apps and rallying to protest low pay and poor working conditions.

While the strikes show drivers are organized, the determination by the GC’s office is likely to ratchet up the pressure drivers bring to try to improve their lot, said Bhairavi Desai, executive director of the New York Taxi Workers Alliance, which represents ride-hail drivers.

“In my experience, the more rights you take away from workers, the more militant the organizing becomes,” Desai said.

The taxi workers’ group had a hand in New York City passing regulations to boost ride-hail driver pay, showing they can organize and exert an influence without employee status under federal labor law, she said.

Nevertheless, collective bargaining remains the “ultimate way for workers to make direct changes,” so losing the ability to unionize at the NLRB is significant, Desai said.

Moving Away From the NLRB

The Philadelphia Drivers Union changed its organizing strategy partly in anticipation of the NLRB being more hostile to for-hire driver unionization, said spokeswoman Angela Vogel. The group had planned to file petitions with the labor board to form driver unions, but set aside that plan after the 2016 presidential election, said Vogel.

“Here in Philadelphia, we have a fully developed legislative and legal strategy that doesn’t require anything from the NLRB at this time,” Vogel said.

In Chicago, the ride-hail driver alliance isn’t looking to have drivers designated as employees with benefits rather than independent contractors, said Lenny Sanchez, co-founder of Chicago Rideshare Advocates.

Nor is the group interested in unionizing through the NLRB, Sanchez said.

“As crazy as it sounds in a progressive city like Chicago, but unionizing was such a hot topic that created so much division, so we decided to shelve it to help build support,” Sanchez said. “It’s become a dirty word, ‘unions.’”

Drivers being independent contractors in the view of the NLRB general counsel’s office doesn’t affect efforts by Rideshare Drivers United in Los Angeles, said Nicole Moore, a spokeswoman for the group.

Thanks to a California Supreme Court decision on employment classification, ride-hail drivers are on sound legal footing to be classified as employees under state wage and hour law, Moore said.

California’s Legislature is considering a bill to codify that ruling into state law, which the Los Angeles ride-hail driver group supports, she said.

“Getting fairness in pay as quickly as possible is our number one priority,” Moore said. “Our elected representatives have a moral obligation to prevent the cycle of extreme poverty for app-deployed drivers.”

To contact the reporter on this story: Robert Iafolla in Washington at riafolla@bloomberglaw.com

To contact the editors responsible for this story: Cynthia Harasty at charasty@bloomberglaw.com; Terence Hyland at thyland@bloomberglaw.com

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