NLRB General Counsel Launches Novel Attack on Independent Contractor Usage

April 22, 2016

Even as Uber reaches two major class action settlements preserving the independent contractor status of its drivers while establishing a "drivers' association," National Labor Relations Board General Counsel Richard Griffin is quietly trying to get the Board to consider whether misclassification of workers as independent contractors is an unfair labor practice per se because it stifles the ability of the workers to form a union.  Under current federal labor law, the issue of misclassification only comes up in the context of trying to determine whether the workers are "employees" for purposes of holding an election or determining whether other labor law violations occurred.  This week, Griffin's Southern California regional office issued a complaint against a Long Beach transport company alleging, among other violations, that misclassification of truck drivers it had been treating as independent contractors violated their labor law rights.  If the Board agrees, this will open up a whole new avenue of attack on the use of independent contractors, enabling the General Counsel to prosecute employers even when there is no other union activity taking place.  Meanwhile, Uber reached a settlement this week in class action suits involving its California and Massachusetts drivers.  While the drivers' independent contractor status is preserved, the agreement, among other things, provides for creation of a drivers' association, which will meet quarterly to discuss driver issues, according to the company. The leaders will be elected by the drivers and will present issues of concern to management.  According to the plaintiffs' attorney, the Association will "play a role similar to a union."