Because the NLRA does not include an independent right of workers to bring their own claims of employer unfair labor practices directly to the NLRB or a court, this conclusion by the Trump NLRB General Counsel deprived hundreds of thousands of Uber drivers and other similarly situated workers of their federally protected organizing and bargaining rights. A new NLRB General Counsel and new majority on the NLRB could reverse course and determine that app-based rideshare drivers are indeed employees covered under the NLRA.
There is currently litigation in many state and federal courts on the issue of how gig workers should be classified. In June 2015, the California Commissioner of Labor found that an Uber driver was an "employee" and entitled to the benefit of state labor laws requiring expense reimbursement. In a similar vein, in the summer of 2016, the New York Labor Department ruled that two Uber drivers were entitled to workers' compensation under New York law. Several cases are also pending in federal courts on whether gig workers are employees or independent contractors under federal employment laws. There are also cases pending before the National Labor Relations Board that pose the question of whether Uber drivers or Postmates delivery workers are entitled to the National Labor Relations Act's protection for engaging in collective action. Last October, the employment tribunal in the U.K. ruled that Uber drivers are employees and entitled to minimum wage, rest breaks, and holiday pay.
Even if gig workers are not ultimately determined to be "employees," there have been attempts by drivers to form organizations that give them some elements of union representation. For example, in New York City, a large number of Uber drivers have joined the New York Taxi Workers Alliance (NYTWA), an organization that maintains a school for drivers, assists drivers with traffic tickets, and lobbies the Taxi and Limousine Commission on behalf of drivers. The NYTWA is engaged in litigation seeking to get Uber drivers classified as employees under both federal employment laws and the National Labor Relations Act.
On Tuesday, the U.S. Department of Labor (DOL) announced a proposal that could drastically reframe the distinction between independent contractors and employees, potentially making it easier for millions of workers to receive federal labor protections they currently lack.
Since Proposition 22 considered app-based drivers to be independent contractors and not employees, state employment-related labor laws did not cover app-based drivers. Proposition 22 enacted labor and wage policies that are specific to app-based drivers and companies, including:
The net result, labor experts say: The companies will save billions of dollars a year in operating costs, helping to ensure their survival and the availability of this type of gig work for the hundreds of thousands of Americans who make their living or supplement their income by delivering passengers, food and other goods to their desired destinations. But survival comes at a potentially high cost for these workers, who will now be entitled to fewer protections around pay, healthcare, sick leave and other issues than they'd be entitled to as employees. Proposition 22, Ken Jacobs, chair of the Labor Center at the University of California-Berkeley, says bluntly, "will take away basic rights and benefits for drivers under the law."
For their part, ride-sharing companies are breathing a sigh of relief, Thornberg says. "Albeit a temporary one, in as much as California is not the only state taking aim at these systems." Other cities, states, and countries continue to debate the rights of gig workers. Britain's Supreme Court is currently deciding whether two Uber drivers are entitled to employment protections; Canada recently ruled in favor of a driver in a similar case. The Massachusetts Attorney general is suing Uber and Lyft over alleged labor misclassification, and the state of New York recently ruled that Postmates drivers should be considered employees who are entitled to unemployment benefits.
SB Nation, a sports broadcasting company owned by Vox Media, announced plans to terminate the contracts of its independent contractors with the passage of Assembly Bill 5 and re-staff with full-time employees. Other app-run businesses like Postmates are refusing to comply with the new California law. Part C of the ABC test is the most contentious, since it requires the worker to be engaged in an independently established trade, occupation, or business of the same nature as the work performed for the business at issue. Consider a person who signs up to be an Uber driver who likely did not have an established business as a driver before signing up with Uber. This factor clearly limits the ability of Uber to treat the driver as an independent contractor in California even though they can likely do so in Arizona. Uber, Lyft and other large gig companies are pushing back in these states by working with lawmakers and labor unions with the hope to gain some type of exception or new class of worker. California has a vote coming up in November that would exclude app-based drivers from Assembly Bill 5. The gig companies are also filing lawsuits to challenge these types of state laws in federal court. 2b1af7f3a8