Sam Estreicher is the Dwight D. Opperman Professor of Public Law at NYU School of Law, where he directs the Center for Labor and Employment Law. He served as chief reporter of the Restatement of Employment Law (2015).
I link to an amicus curiae brief that was filed Friday in the Ninth Circuit appeal, Chamber of Commerce of the United States v. City of Seattle, No. 17-35640, with the help of Matthew J. Segel and Kymberly K. Evanson of the Pacifica Law Group. The brief offers an alternative ground for affirming the order of the District Court granting the City’s motion to dismiss: the availability of the 1914 Clayton Act’s labor antitrust immunity. The City’s Ordinance is limited to Uber and Lyft drivers who are not “employees” under the National Labor Relations Act (NLRA). Labor’s immunity, which precedes by two decades enactment of affirmative federal legislation like the 1935 NLRA and the 1938 Fair Labor Standards Act, is not based on coverage as statutory employees under these laws. Rather, it turns on whether the individuals seeking shelter under the Clayton Act are “workers” or “laborers”, best defined as individuals who are principally providers of their own services, without significant capital investment, for companies — in this case called “driver coordinators” like Uber and Lyft – who make the necessary business decisions. These coordinators, not the drivers, make the principal entrepreneurial decisions as to what to charge for the drivers’ services, what percentage of that charge goes to drivers’ compensation, and the manner in which services are to be provided. Although sometimes the Clayton immunity is referred to one for labor “acting alone,” the reference is to labor not acting in combination in business groups to cartelize non-labor markets, which is not present in this case. The fact that the City has enacted a framework for deciding who shall represent the drivers and resolving disputes over terms and conditions of the provision of their labor does not derogate from the labor-antitrust immunity of the drivers and their representative. The argument in the brief will be presented greater detail in an upcoming article.
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June 5
Nail technicians challenge California classification; oral arguments in challenge to LGBTQ hiring protections; judge blocks Job Corps shutdown.
June 4
Federal agencies violate federal court order pausing mass layoffs; Walmart terminates some jobs in Florida following Supreme Court rulings on the legal status of migrants; and LA firefighters receive a $9.5 million settlement for failure to pay firefighters during shift changes.
June 3
Federal judge blocks Trump's attack on TSA collective bargaining rights; NLRB argues that Grindr's Return-to-Office policy was union busting; International Trade Union Confederation report highlights global decline in workers' rights.
June 2
Proposed budgets for DOL and NLRB show cuts on the horizon; Oregon law requiring LPAs in cannabis dispensaries struck down.
June 1
In today’s news and commentary, the Ninth Circuit upholds a preliminary injunction against the Trump Administration, a federal judge vacates parts of the EEOC’s pregnancy accommodation rules, and video game workers reach a tentative agreement with Microsoft. In a 2-1 decision issued on Friday, the Ninth Circuit upheld a preliminary injunction against the Trump Administration […]
May 30
Trump's tariffs temporarily reinstated after brief nationwide injunction; Louisiana Bill targets payroll deduction of union dues; Colorado Supreme Court to consider a self-defense exception to at-will employment