October 20, 2019

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Hit the Road, Jack: Uber Drivers are Independent Contractors According to NLRB

Why This Matters

On May 14, the National Labor Relations Board (“NLRB”) released an advice memorandum declaring that Uber drivers are independent contractors (not employees) and are, therefore, not eligible to unionize.  The memo, dated April 16, 2019, said the drivers are independent contractors under the NLRB’s recently-adopted SuperShuttle test (see here), because they have “significant entrepreneurial opportunity” while driving for Uber.   The NLRB’s standard only applies in the labor context.  It does not apply to California wage claims and lawsuits, where the California Supreme Court has adopted the ABC Test set forth in Dynamex (see here).

Background

The April 16th advice memo was drafted by Jayme L. Sophir, Associate General Counsel Division of Advice, in response to questions from the NLRB’s San Francisco Regional Director, Jill Coffman, about claims that Uber violated workers’ rights under the National Labor Relations Act (“NLRA”).  The NLRA authorizes employees to unionize and protects their rights organize.  The NLRA does not apply to independent contractors.

In the advice memo, Sophir applied the SuperShuttle test, which aims to gauge worker’ entrepreneurial opportunity by examining ten aspects of their relationship to their alleged employer.  The memo focuses on the extent of Uber’s control over drivers, saying three features of its platform afford “drivers significant opportunities for economic gain and, ultimately, entrepreneurial independence.”  The features are: (1) workers’ “unfettered freedom” to set their schedules by logging on and off the app, (2) their control over their work area based on where they log on, and (3) their ability to “toggle between different ride-sharing apps at will.”  The memo does state that some of the SuperShuttle factors (e.g., drivers’ lack of special skills) suggest that Uber drivers are employees, but that “the strength of the evidence supporting independent-contractor status overwhelms those factors.”

The advice memo is another indication of the current administration’s pro-business policy agenda, which at times conflicts with this state’s pro-labor policies.

© 2019 Mitchell Silberberg & Knupp LLP

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About this Author

Jonathan Turner Labor Employment Attorney
Partner

Jonathan Turner is a partner based in Los Angeles. He began his career in 1981 as an attorney with the National Labor Relations Board, Region 21 (Los Angeles). Before entering private practice in 1988, Mr. Turner was staff counsel for the Alliance of Motion Picture and Television Producers and corporate labor and employment counsel for Twentieth Century Fox. Throughout his career, Mr. Turner has represented management in all aspects of labor and employment law.

A significant portion of his practice is in the motion picture industry, where he has represented studios and other...

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