Uber Drivers Are Not Employees, National Relations Board Rules. Drivers Saw It Coming

Much like customers anticipate the arrival of an Uber, watching as the tiny image of a car winds its way across a map on a phone, Uber drivers say they have also been anticipating (and predicting) the National Labor Relations Board's decision denying them recognition as employees.

The NLRB released the advisory memo on Tuesday, nearly a month after it was originally issued. It concludes that Uber drivers are independent contractors and not employees — a classification that means they have no right to form a union or bargain collectively.

The memo, which comes from the NLRB's general counsel's office, serves as a recommendation for rulings in future cases, but will not impact many existing lawsuits.

The announcement of the decision comes on the heels of a national day of action by Uber and Lyft drivers last week. And, some remarked, suspiciously close to Uber's disappointing initial public offering on Friday.

While the ruling may be disappointing to driver advocates, several ride-hail driver groups around the country say they are neither daunted nor disheartened as they continue to pursue policies to regulate driver working conditions at the state and municipal levels.

"The NLRB is not a place where we expect to have our rights protected, given the Trump administration's position" on labor unions, Nicole Moore, a spokeswoman for Rideshare Drivers United in Los Angeles told NPR, echoing a sentiment shared by other regional advocates.

"Just because we can't be a union doesn't mean we can't act like a union," Moore added.

She noted the NLRB's advisory is narrow in scope; it prevents drivers for Uber, and by extension Lyft and other app-based drivers, from unionizing, but it does not touch on issues around minimum pay or working hour limits, she said. "And that's a good thing."

Driver groups across the country, inspired by gains in New York and California, have shifted their focus from pursuing change at the federal level to the state and city level.

In California, the state legislature is working to codify a 2018 state Supreme Court decision establishing an "ABC test" for who qualifies as an independent contractor and who is an employee.

In New York City, the Taxi and Limousine Commission voted in December to establish a base rate of $17.22 per hour, making it the first city in the country to set a minimum pay rate for app-based drivers. The city also placed a moratorium on new for-hire vehicle licenses.

Advocates in Chicago are using New York as a model.

"We're looking at what New York City is doing and we are focusing our attention on city hall," Eli Martin, a driver and co-founder of Chicago Rideshare Advocates, told NPR.

Martin contends the vast majority of drivers in Chicago are not seeking to be converted into company employees with health insurance. "The path forward is not starting a traditional union to negotiate with the company," he said.

Instead, he said, most of the group's demands can be addressed by locally elected officials. "We're trying to get a cap on the number of drivers, some type of pay increase" and city oversight of Uber and Lyft's deactivation process.

With more than 67,000 active Uber and Lyft drivers across the city, Martin expects the organization can exercise significant pressure on the new mayor and sitting aldermen.

Angela Vogel, a driver and member of the Philadelphia Drivers Union, noted the NLRB is only one of many agencies that can determine employee status. The IRS, for instance, has its own guidelines to determine who is and isn't an independent contractor. And state agencies often decide benefits eligibility, including workers compensation and unemployment.

"So, what I tell people is just because the NLRB says we are not employees doesn't mean state regulators won't have a different classification, and that's what we have to keep fighting for," Vogel said.

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