News & Commentary

May 15, 2019

The National Labor Relations Board issued a memorandum concluding that Uber drivers are independent contractors, not employees under Section 2(3) of the National Labor Relations Act. Because the NLRA’s protections apply to employees, the decision leaves ride-hail drivers vulnerable to retaliation if they attempt to organize a union or engage in other collective action. The memo, dated April 16, was revealed yesterday by Bloomberg Law just days after Uber’s dramatic I.P.O bust and an even more dramatic multi-city strike by Uber and Lyft drivers last week. The decision is a break with the Obama NLRB, which issued a complaint against Postmates for impeding workers’ ability to exercise their rights under the NLRA. As Charlotte Garden pointed out, the memo “alternatives ignores how Uber influences drivers’ behavior, or treats that influence as a point in Uber’s favor” — when many drivers say they can only make wages when following Uber’s incentives.

The NLRB’s decision governs whether drivers are employees under federal labor law (which concerns the right to organize a union), but not under employment law (such as FLSA and other minimum wage laws). This decision thus does not change the status of tens of thousands claims that Uber drivers have brought alleging that they were misclassified under employment law — but last month, the Department of Labor issued an opinion letter saying that it believes gig workers in the “sharing economy” to be independent contractors under federal employment law, too. Check out Ben and Sharon’s thoughts on that letter here and here.

The Pregnant Workers Fairness Act (PWFA) was reintroduced in the House yesterday with bipartisan support. In 1978, Congress passed the Pregnancy Discrimination Act, which bans employers from discriminating workers “on the basis of pregnancy, childbirth, or related medical conditions.” In Young v. UPS, the Supreme Court held that employers couldn’t refuse to accommodate pregnant workers when it accommodated other employees with similar limitations. But if a company refuses to accommodate workers with off-the-job-injuries and treats pregnant workers the same by not accommodating anyone for off-the-job injuries, they don’t violate the PDA. As a result, many pregnant workers don’t have the accommodations they need to safely, equally continue their work while pregnant. The Pregnant Workers Fairness Act would fix that by requiring employers to make reasonable accommodations for all pregnancy, childbirth, and related medical conditions—just like the ADA requires employers to make accommodations for people with disabilities. Like the ADA, employers would have to make accommodations that pregnant employees and recent parents need work, unless it would create an “undue hardship” for the employer. According to the National Women’s Law Center, the PWFA would guarantee accommodations like re-assigning heavy lifting duties, modifying a no-food-or-drink policy, or forcing a pregnant employee to take a leave if they could continue work with a reasonable accommodation.

Peter Robb, the General Counsel of the National Labor Relations Board, is arguing that litigation is excluded from the NLRA’s protections for concerted activity. The NLRA protects workers right to engage in collective action for “mutual aid or protection” — but Robb is arguing that, under the “implicit holding” of Epic Systems v. Lewis, joining together to sue over wage theft, civil rights violations, or safety issues doesn’t count as protected concerted activity. If the NLRB accepts the General Counsel’s approach, workers could be lost protection from retaliation if they filed a complaint with a state labor office or explored filing a class action lawsuit. Robb is a Trump appointee.

The National Immigration Law Center and Tennessee Immigration and Refugee Rights Coalition just published a new toolkit for organizations rapidly responding to massive worksite immigration raids in their community. The toolkit includes resources for community organizing, supporting affected families, and legal advocacy, such as organizing guides and sample intake forms. The toolkit draws on lessons local organizers learned after a massive ICE raid of a slaughterhouse in Bean Station, Tennessee, in which ICE detained over 100 immigrant workers and at least one U.S. citizen.

The American Prospect hosted a roundtable about how to measure the erosion of standard employment and the size of the gig economy, featuring David Weil and John Schmitt & Heidi Shierholz of the Economic Policy Institute.


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