According to the main Labor Board lawyer, Uber drivers are entrepreneurs (1)

Uber drivers are not legal "employees" within the meaning of federal labor legislation, said the Office of the Advocate General of the US Labor Council in an advisory note published on May 14.

The notice of the National Labor Relations Board, dated April 16, means that the general counsel for the agency will adopt the following position: workers in companies such as Uber Federal protections for organizing activities at the workplace are excluded, such as trying to form a union or join a union. In practice, this means that Uber workers do not have a federal forum if they want to unionize or file what are called unfair labor practice charges.

"While a decision of the NLRB, consisting of five full members, is usually" likely to appeal "in a federal court of appeal, the decision of the legal adviser's office not to issue unfair labor practice is not subject to judicial review, "said Richard Reibstein, employer associate at the Locke Lord LLP office in New York.

Union organizers who worked with Uber employees called for caution about the negative effects of the NLRB's decision on their efforts.

Bhairavi Desai, executive director of the New York Taxi Workers' Alliance, told Bloomberg Law on May 14 that the ability to organize through the NLRB made it even harder to fight for better working conditions and salary. , highlighting a recent New York City bylaw setting a compensation standard for leased drivers.

This decision comes as Uber was struggling to meet expectations in the days following its much anticipated initial public offering.

"We focus on improving the quality and safety of self-employment, while preserving the flexibility that drivers and couriers tell us they're worth," said a spokesperson for the company. Uber to Bloomberg Law in an email of May 14th. The company indicated that it offered optional protection against injury while traveling and that it was funding course work or certifications as part of a partnership with Arizona State University for eligible drivers and their families.

Feds v. States

Regulations on the classification of workers can have a significant impact on market economy companies and franchised companies. The NLRB during the president Barack ObamaThe administration concluded that the Postmen smugglers, whose business structure is similar to that of Uber and other concert companies, are legal employees.

Federal agencies during the president Donald Trump's The administration has sought to relax these rules in favor of employers, while some liberal states, such as California, are working to strengthen regulations in this area.

"The madness of state law testing for independent contractor status is not affected by the publication of the memorandum of advice," Reibstein told Bloomberg Law. "The main battleground for misclassification problems of independent contractors remains at the state level."

The Ministry of Labor has also concluded that skilled workers are independent contractors who are not entitled to minimum wage or overtime pay.

"We will be pushing for more state-level legislation," like the "California Employees' Status Bill to protect us from an anti-worker president," Desai said in a statement. "But we can not rely solely on the law or the courts to stop the exploitation of workers. We can only rely on the strong activism of workers who stand up everywhere. "

The NLRB quotes the "entrepreneurial opportunities" of drivers

The Chamber relied on a recent decision and a legal test based on a case known as SuperShuttle DFW, at the time of the publication of the advisory note relating to three separate complaints against Uber for unfair labor practices.

The NLRB in SuperShuttle overturned an existing standard for deciding when workers are "employees" protected by federal workplace laws. He implemented a new "business opportunity" test that took into account at least 10 other factors related to the employment relationship to answer the employee or contractor question.

"Although Uber has withheld some of the driver tariffs as part of a commission-based system that can generally support employee status, this factor is neutral here because the business model of Uber avoids the control of drivers traditionally associated with such systems and offers drivers a meaningful entrepreneurial opportunity. "The NLRB Consulting Division writes in the memo.

"The almost complete control of the drivers on their cars, their working hours and their log-in locations, as well as their freedom to work for Uber's competitors, offered them an important entrepreneurial opportunity," he said. the NLRB.

Only democrat of the council, Lauren McFerran, criticized the new SuperShuttle test, call it the test "economic unrealities".

NLRB President John Ring also suggested that the board propose a new bylaw, as opposed to a policy statement or decision on a previous case, to clarify the difference between entrepreneurs employees and employees for the purpose of organizing trade unions.

The NLRB notes in its note that Uber has "substantially revised its operations and policies" since the company's inception in 2013 and indicates that its analysis covers "the period from February 27, 2015 to August 11, 2016".

"Workers can not rely on the court system to support them," said Jim Conigliaro Jr., founder of the Independent Driver's Guild, at Bloomberg Law in an email on May 14. "Drivers must organize to impose common sense legislation for fair wages, benefits and representation, regardless of their classification."

IDG is a subsidiary of the International Association of Machinists and Aerospace Workers, which works to organize application-based drivers.