The National Labor Relations Board’s general counsel has issued an advice memo stating that drivers for Uber Technologies are independent contractors and not employees.
The advice memo, dated April 16 and released May 14, pertains to three separate cases before the NLRB alleging Uber wrongfully terminated drivers as well as hampered unionization efforts of Uber drivers; the regional offices were urged to dismiss the cases.
The general counsel cited the January NLRB’s SuperShuttle ruling in which the board overturned a Obama-era decision in 2014 on who qualifies as independent contractors. The counsel used a multi-factor test in making the employment determination, weighing:
(a) The extent of control which, by the agreement, the master may exercise over the details of the work.
(b) Whether or not the one employed is engaged in a distinct occupation or business.
(c) The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.
(d) The skill required in the particular occupation.
(e) Whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by the job.
(h) Whether or not the work is part of the regular business of the employer.
(i) Whether or not the parties believe they are creating the relation of master and servant.
(j) Whether the principal is or is not in business.
The general counsel found the drivers had significant entrepreneurial opportunity and control over their own work, concluding “these and other facts strongly support independent-contractor status and outweigh all countervailing facts supporting employee status.”
Not appealable. While determinations of the board itself can be appealed, “decisions by the general counsel’s office not to issue an unfair labor practice are not subject to [federal] judicial review,” Richard Reibstein, a partner representing employers at Locke Lord LLP’s New York City office, told Bloomberg Law.
Further, Reibstein noted that the general counsel’s memo has no bearing on the various state laws affecting independent contractor classification. “The primary battleground for independent contractor misclassification issues remains at the state level,” he said. The general counsel’s memo follows an opinion letter issued by the US Department of Labor concluding that workers who provide services to consumers through an unidentified virtual platform are independent contractors under the Fair Labor Standards Act, not employees of the company.