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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October 23
Employers increasingly shift health care costs onto workers and NYC proposes placing restrictions on fully automated customer service.
October 22
SCOTUS declines Wilcox appeal; Penn State research assistants win bargaining rights; SEIU sued over military leave firing.
October 21
DOL withdraws tipped-worker rule; Instacart settles hiring-bias claims; Phillips 66 locks out New Jersey refinery workers.
October 20
Korean unions oppose labor exemption bill; Portland city workers prepare for strike; UPenn grad student union looks to dismiss university filing
October 19
FDA reverses course on policy prohibiting off-duty union activity; FAA and NATCA reach deal to secure pay increase for air traffic controllers.
October 18
Federal judge again halts cancellation of the Bureau of Prisons’ CBA; tabletop gaming workers face roadblocks in union recognition.