Department of Labor and the NLRB Consider Whether Gig Workers Are Independent Contractors
Published by Eric A. Welter and Kimberly Kauffman on June 24, 2019
The two agencies recently released guidance advising that certain gig workers—workers who perform temporary, flexible jobs (often obtained through a virtual platform)—were not employees, but independent contractors.
DOL Opinion Letter:
The DOL concluded based on these facts that the service providers were independent contractors and provided services directly for the consumer rather than working directly for the company. In other words, there was no indication that the service providers were economically dependent on the company because: 1) the company did not appear to exercise control over its service providers; 2) there was no permanent working relationship; 3) the company did not invest in equipment or resources for the service providers; 4) service providers could use discretion to choose service opportunities and maximize profits; 5) service providers could control their amount of profit or loss; and 6) service providers used the company’s virtual platform to obtain service opportunities but did not develop, maintain, or otherwise operate that platform.
NLRB Advice Memorandum:
The National Labor Relations Board (NLRB) reached a similar conclusion in an advice memorandum released May 14, 2019. The NLRB analyzed whether Uber drivers were independent contractors for purposes of the National Labor Relations Act, based on Uber’s policies and business model from 2015 to 2016. Riders would open the app, and drivers could choose whether to accept or reject the trip. The rider paid the fare through the app, and Uber retained a percentage of the fares and remitted the remaining fare amount to the driver. Riders also rated Uber drivers, and higher-rated drivers could receive access to more profitable opportunities.
In its memorandum, the NLRB applied the common-law agency test factors as outlined in its SuperShuttle opinion (which we covered here). In determining that the Uber drivers were independent contractors, the NLRB focused on several aspects of the relationship between the drivers and Uber, including the drivers’ almost complete control of their cars, work schedules, and locations, as well as their ability to work for competitors. The NLRB also noted the drivers’ lack of supervision, investment in their work, and their understanding that they were not employees weighed in favor of finding that the drivers were independent contractors.
Although the guidance issued by the DOL and NLRB is not law and is not binding on courts, it provides useful arguments for companies to utilize the next time they are faced with a claim that gig workers are their employees. Companies, however, should continue to look to the law of their specific jurisdiction, as some states may continue to view gig workers as employees and offer additional protections.Topics: Class Actions and Complex Litigation, Department of Labor, DOL, Employment Litigation, Independent Contractor and Joint Employer Issues, National Labor Relations Act (NLRB), National Labor Relations Board, NLRB, U.S. Department of Labor