Thursday, May 16, 2019

More Federal "Guidance" on Gig Economy Workers - Stale and Not Illuminating

As a professor of traditional labor relations law in addition to workers' compensation law (and as co-author of a labor law textbook), I took notice when people started messaging me that the law of employee status in labor law had changed. It hasn't. The National Labor Relations Board (NLRB) applied the traditional Restatement Second of Agency 10-factor test to conclude in an Advice memorandum that the particular workers analyzed in the memorandum--three separate "units" of Uber drivers were independent contractors.  The cases were consolidated in Region 20 of the NLRB (San Francisco) and the charges were filed in 2015 and 2016. The fact that it took well-nigh three years to get a "recommendation" out the door telling regional offices whether they may even pursue such cases says quite a lot. The cases were slow to coordinate (personnel shortages at the agency?) and no doubt there was a good deal of internal debate and dissension. The fact that the cases were not instantly dismissed suggests they were placed in process on the watch of the "Obama board" and difficult to perfunctorily shake.

I worked in two separate regional offices during my career with the NLRB from 1997-2006. As I tell my labor law students, to death and taxes as among life's certainties, one could perhaps add competing, irreconcilable NLRB "Advice" memoranda. (There is nothing "advisory" about Advice memos - NLRB regional offices must follow them). What are these memos? When a new political party takes power, the new General Counsel (a political appointee) and his/her coterie issue various directives to NLRB regional offices saying, in effect, to pursue/not pursue issues of interest to the new politically-motivated (elections, regardless who wins, have consequences) cast of analysts. The selected issues have usually been contested for years and the internal vacillation is anticipated by career folks (making labor law kind of a nightmare to teach in law school). Are inflatable rats protected labor speech or secondary boycott activity? Are graduate students employees? Are college football players employees? Is McDonald's headquarters a joint employer with its franchisees? The statute (in this writer's opinion, intentionally) provides no guidance.   

What then is the impact of the Uber Advice memo? Agencies' decisions not to issue complaints alleging violations of law are nearly unreviewable by the courts. So anyone alleging at the NLRB that an Uber driver was fired for engaging in union activity will not receive the benefit of the awesome remedial arsenal of the NLRB (insert wry smile here--no mitigated back pay or notice posting? A tragedy!). Similarly, anyone trying to gain governmental certification of a bargaining unit of Uber drivers may be out of luck (though there is an interesting question as to whether categorical exclusion of Gig workers under federal law would give states labor relations jurisdiction they would not otherwise possess -- maybe the drivers can be union-certified under California law: the rule of unintended consequences).  I also suppose in passing that if the NLRB takes the position the drivers are not employees it will not be able to pursue in federal court secondary boycott injunctions against the organizations representing the drivers when those organizations show up at the doorsteps of neutral employers.

In terms of black letter law the only thing worth noting is that the NLRB is predictably following the D.C. Circuit Court of Appeals and, I think, is even hyper-emphasizing “entrepreneurial” opportunity as a factor in determining employee status, a development that I and others have previously derided at some length.  

Michael C. Duff

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