Advisory Memorandums are not law, but one released last week clearly shows how the National Labor Relations Board (NLRB) general counsel will treat any unfair labor practice charges or attempts to unionize by Uber Drivers.
Peter Robb, NLRB’s top attorney, has authority over whether to issue unfair labor practice charges against employers. In a memorandum released May 14, 2019, he indicated that Uber drivers are not legal employees for the purpose of federal labor laws. Since they are not legal employees, the National Labor Relations Act and the protections it affords legal employees to unionize don’t apply to Uber drivers.
The memorandum was sparked by three separate claims of unfair labor practice charges lobbied against Uber. In coming to the decision that Uber drivers are not employees, Robb relied on a test created in a recent case, Super Shuttle DFW (NLRB 2019). The new “entrepreneurial opportunity” test considers 10 factors when determining whether a worker is an employee or contractor.
The memorandum outlines that in the case of Uber, while drivers work on a commission-based system, “that factor is neutral here because Uber’s business model avoids the control of drivers traditionally associated with such systems and affords drivers significant entrepreneurial opportunity.” It went on to state, “Drivers’ virtually complete control of their cars, work schedules, and log-in locations, together with their freedom to work for competitors of Uber, provided them with significant entrepreneurial opportunity.” Bottom line, Uber drivers are independent contractors, not employees, under federal labor law.
What does this mean for employers? This is a huge win for Uber, but also for employers in general. It shows again that the NLRB’s top attorney isn’t afraid to issue employer-friendly decisions. While the memorandum is not law, and can be reversed by a future general counsel, it provides clear messaging right now to Uber drivers to not waste their time filing complaints with the NLRB. Non-employees are outside of their jurisdiction. The memorandum even instructs regional offices to dismiss the present charges against Uber if they don’t get withdrawn first.