NLRB: Uber Drivers Are Independent Contractors
The NLRB's determination could prevent Uber drivers
and similarly situated workers in other industries from asserting rights under
the National Labor Relations Act.
Pursuant to an
April 16, 2019,
memo, the National Labor Relations Board (NLRB) general counsel's office has
determined that Uber drivers are independent contractors, not employees.
The NLRB's lead attorney's conclusion is based on the "common-law agency test,"
which requires the application of 10 non-exhaustive common-law factors:
The extent of control which, by the agreement, the master may exercise over
the details of the work.
Whether or not the one employed is engaged in a distinct occupation or
The kind of occupation, with reference to whether, in the locality, the work
is usually done under the direction of the employer or by a specialist without
The skill required in the particular occupation.
Whether the employer or the workman supplies the instrumentalities, tools,
and the place of work for the person doing the work.
The length of time for which the person is employed.
The method of payment, whether by the time or by the job.
Whether or not the work is part of the regular business of the employer.
Whether or not the parties believe they are creating the relation of master
Whether the principal is or is not in business.
For now, the memorandum does not appear to be far reaching, as it is likely
confined to employment rights protected by the National Labor Relations Act (NLRA).
Employers should keep in mind that employment rights are essentially a bundle of
independent sticks that come from a variety of different sources, rather than
one giant "take it or leave it" package. These sources include federal
legislation, such as the Fair Labor Standards Act (governing overtime and
minimum wage), Title VII (governing anti-discrimination workplace measures), and
other federal statutes such as the NLRA.
The immediate impact of the NLRB memorandum is likely to interfere with Uber
drivers - and employees similarly situated in other industries - in asserting
NLRA rights. The NLRA provides employees covered under the Act with the "right
to self-organization, to form, join, or assist labor organizations, to bargain
collectively ... and to engage in other concerted activities." Independent
contractors are not covered by the NLRA and therefore are not afforded these
Employers should also keep in mind that there are a number of state-specific
employee protection laws. For example, the California Labor Commission
determined in 2015 that Uber drivers in California were employees, not
independent contractors, thereby placing them under the protection of California
In April 2019, the California legislature proposed
Assembly Bill 5 to codify the
Labor Commissioner's determination that Uber drivers - and similar "gig workers"
- are employees. The bill proposes that California use a different three-factor
test from the NLRB test listed above.
Arizona typically follows the federal scheme in most regards; however, there are
state-specific Arizona laws with which Arizona employers must continue to
The correct classification of workers is important both for workers and
employers alike. Incorrectly classifying workers may lead to liability under a
number of state and federal statutes.
1Factors taken from Supershuttle, 367 NLRB No. 75 slip op. at 1 (citing BKN,
Inc., NLRB 143, 144 (2001).