IN-DEPTH WITH EASE DAUS Driver Employment Status Heats Up BY MATT DAUS THE BATTLE OVER T here is a nationwide struggle between the gig companies and labor advocates over drivers’ statuses and rights, and it will likely lead to increased enforcement, litigation, and leg-islative changes. The Biden administration, which promised to be strong advocate for unions, is following through on that pledge as the National Labor Relations Board (NLRB) seems poised to over-turn the current worker classification test (established in the 2019 SuperShuttle case) that made it more difficult to categorize work -ers as employees—a test that led the NLRB to conclude that Uber drivers are not employees because the TNC model “affords drivers significant entrepreneurial opportunity” (2019). In 2021, the NLRB signaled that it was open to reconsidering its previous decision, and in December of last year, the agency invited interested parties to weigh in on the issue. More importantly, a change could allow Uber drivers to move forward with their long-sought plans to unionize. The NLRB is also joining forces with the Wage and Hour Divi-sion (WHD), an agency of the US Department of Labor, to share in-formation, collaborate, and coordinate on investigations of potential violations of federal labor and employment laws, placing particular emphasis on worker misclassification. distinct occupation or business. The SuperShuttle standard gives more room to include potential entrepreneurial opportunity in the analysis of whether the worker is engaged in a distinct oc-cupation or business, rather than be-ing limited to the actual economic gains. Under this standard—where the overall evaluation shows significant opportunity for Background on the Classification Standard The December 2021 invitation for a public briefing stems from a case regarding The Atlanta Opera and involves makeup artists and hair stylists who are trying to unionize—but implications of this deci-sion will reach into every industry. The board sought insight on wheth-er they should adhere to the independent contract (IC) standard from the 2019 SuperShuttle case; return to the previous standard estab-lished by FedEx Home Delivery (2014), either in its entirety or with modifications; or do something else. In general, pro-employer groups favor the SuperShuttle decision, while unions and workers’ rights or-ganizations tend to favor the pro-employee FedEx standard. SuperShuttle is a Trump-era NLRB decision that refocused the determination of worker status on “entrepreneurial opportunity” rather than the “economic realities” standard that had been estab-lished with the FedEx case. This decision affirmed the importance of entrepreneurial opportunity as a significant factor in evaluating IC status, and returned to the traditional common-law agency test, which involves looking at a non-exhaustive list of factors to deter-mine whether an employment relationship exists. The traditional test weighs the extent of control that the employer may exercise over the details of the work, and whether the worker is engaged in a economic gain (or significant risk for loss)—the NLRB is likely to deem the worker an IC. In 2019, the NLRB Division of Advice applied the SuperShuttle test and concluded that Uber drivers are ICs be-cause they had significant opportunities for “economic gain and, ultimately, entrepreneurial independence.” In contrast, the FedEx case is an Obama-era NLRB decision that had the same common-law agency factors, but redefined the significance of an IC’s “entrepreneurial opportunity for gain or loss,” declaring that the worker’s entrepreneurial opportunity should not be the driving principle of the overall analysis. This standard shifted to the “economic realities” of the parties’ relationship: only actual (not theoretical) entrepreneurial opportunity should be con-sidered. Under its “economic realities” analysis, it became much easier for workers to be categorized as employees, and more work-ers became subject to National Labor Relations Act (NLRA) protec-tions (union organizing, unfair labor practices, etc.). The NLRB will now reconsider whether to overturn SuperShut-tle and adopt a different legal test for determining employment sta-tus under the NLRA. Replacing SuperShuttle with a more restrictive 30 05.2022 chauffeurdriven.com
Chauffeur Driven May 2022: Page 30
