Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School. From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C. Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere. Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School. He can be reached at [email protected].
There are two ways to think about whether a settlement is a good deal from the perspective of the plaintiffs. One is whether, in light of all the facts and law relevant to the particular litigation, plaintiffs’ attorneys got as much for their clients as they could. No one, other than those intimately familiar with the case, can assess that question perfectly. The second is whether the settlement amounts to progress for the plaintiffs from a broader, less litigation-specific perspective. Here, outside observers can have more to say.
It will take time to fully digest the Uber settlement, announced today, but a few things seem clear. First, Uber prevailed on what is, by far, the most important issue. The primary question in this case, and the one with the greatest practical relevance, is whether whether Uber drivers can continue to be misclassified as independent contractors or will be treated as employees. As Uber proudly announced today, “Drivers will remain independent contractors, not employees.” Uber drivers did secure some genuine benefits. There are financial payments to the drivers (up to $8000 for those that drove the most; less for those who drive less), and drivers can now inform passengers that tips can be accepted. There are also some improvements to how and when drivers can be deactivated. And Uber has also agreed to help establish a drivers “association.”
These are real gains even though, in my view, they pale in comparison to what the settlement allows Uber to do. There are also some important questions about the gains. What will it mean, in practice, that Uber can temporarily log drivers out of the app without the ability to accept new requests, but not deactivate them? Given how baked into the Uber experience the “no tipping” rule is, can we expect postings – informing passengers they can tip – to have much effect? And labor lawyers will wonder whether a drivers’ association that has any teeth can be established consistent with § 8(a)(2) or antitrust law. It may well be doable, but will require some real work.
Plaintiffs’ lawyers, and the drivers who fought with them, deserve credit for moving the ball forward. Looking beyond this litigation, we might turn our attention to the NLRB. Recently, the Board’s general counsel announced his position that employee misclassifaction may be an unfair labor practice. We’ll keep tabs as the charges start to flow.
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May 9
Philadelphia City Council unanimously passes the POWER Act; thousands of federal worker layoffs at the Department of Interior expected; the University of Oregon student workers union reach a tentative agreement, ending 10-day strike
May 8
Court upholds DOL farmworker protections; Fifth Circuit rejects Amazon appeal; NJTransit navigates negotiations and potential strike.
May 7
U.S. Department of Labor announces termination of mental health and child care benefits for its employees; SEIU pursues challenge of NLRB's 2020 joint employer rule in the D.C. Circuit; Columbia University lays off 180 researchers
May 6
HHS canceled a scheduled bargaining session with the FDA's largest workers union; members of 1199SEIU voted out longtime union president George Gresham in rare leadership upset.
May 5
Unemployment rates for Black women go up under Trump; NLRB argues Amazon lacks standing to challenge captive audience meeting rule; Teamsters use Wilcox's reinstatement orders to argue against injunction.
May 4
In today’s news and commentary, DOL pauses the 2024 gig worker rule, a coalition of unions, cities, and nonprofits sues to stop DOGE, and the Chicago Teachers Union reaches a remarkable deal. On May 1, the Department of Labor announced it would pause enforcement of the Biden Administration’s independent contractor classification rule. Under the January […]