Tuesday, August 20, 2019

An Uber "Slowdown" in Miami

Uber slowdownsI have it on good authority from an Uber driver in Miami that Uber drivers have been using social media to organize what I will characterize as a "slowdown". Here's how it works: periodically throughout the day, Uber drivers pre-arrange with each other to shut off their Uber apps. This creates an immediate shortage of drivers (supply) relative to passengers (demand), resulting in surge pricing. Immediately after the surge pricing kicks in, the drivers turn their apps back on, thus capitalizing on the higher fares.

I'm not sure whether this has a direct impact on Uber, since the surge pricing is passed on to consumers -- and Uber's profit may be even higher with surge pricing. But if drivers are targeting Uber only, but not (e.g.) Lyft, that will put Uber at a competitive disadvantage. Even if not, the surge pricing may make traditional taxis more competitive.

Regardless, there are obvious labor law implications. My initial reaction is that this would not be an impermissible slowdown under the NLRA, since the drivers are nonunion and Uber calls them independent contractors. Is it "protected, concerted activity" -- i.e., does the NLRA protected the concerted, otherwise-protected activity of independent contractors?

Reactions are welcome!



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If they are independent contractors, which is how most states treat them, I'd say there's a pretty serious antitrust problem. Some years ago lawyers who handle court-appointed criminal cases for indigents in DC got together to raise their income. The Supreme Court described that as naked restraint of price and output in violation of the antitrust laws, FTC v. Superior Court Trial Lawyers' Association (1990).

Posted by: Dennis Nolan | Aug 20, 2019 5:59:12 PM

That’s interesting — there was a similar story making the rounds a few weeks about about Uber drivers doing the same thing at one of the DC airports. I agree with Dennis that, assuming the drivers are ICs rather than NLRA employees, there is the possibility of antitrust liability. (Not the certainty, because of the possibility for creative arguments about the scope of the Clayton Act's labor exemption.) All that said, I’d think the likelihood of the FTC actually going after the drivers is quite small, just as a practical matter. Beyond that, I think this illustrates that workers who are mistreated badly enough will engage in collective action, whether the law allows it or not.

Posted by: Charlotte Garden | Aug 20, 2019 9:42:28 PM

Labor as an article in commerce. Another old road to go down . . . And is it a "labor dispute" within the meaning of the Norris LaGuardia Act?

Posted by: Michael C. Duff | Aug 21, 2019 5:55:00 AM

All good comments. Also, not to self-promote (actually, who am I kidding, I'm self-promoting), but Joe Seiner and I recently wrote about the pros and cons of being considered an employee under the NLRA when workers engage in collective action. Including the antitrust issue, which seems murky at best. See "A Modern Union for a Modern Economy," https://www.ssrn.com/abstract=2924833

Posted by: Jeff Hirsch | Aug 22, 2019 12:22:09 PM

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