Uber and other gig-economy companies score major wins at NLRB and DOL

Both the NLRB and DOL have issued letters advising that gig-economy companies, like Uber, are not employers but have instead properly certain workers, like drivers, as independent contractors.

The letters come on the heels of NLRB decisions earlier this year holding that the Board will no longer look at potential or even contractually-available control. Rather it will focus on actual control exercises by the company, and in doing so will not consider control that is required by the government. This new test focuses on whether the independent contractor enjoys his-her own “entrepreneurial opportunity.”

In the NLRB letter, NLRB General Counsel opined that Uber in particular is, under this new test, not engaging drivers as employees but has properly characterized them as independent contractors. Specifically General Counsel noted that drivers control their own time of work, place of work and are free to drive for competitors, with many actually doing so. Drivers provide their own vehicles, fuel and maintenance. They operate without supervision by Uber, rarely interacting with Uber’s management except when a problem arises.

In the DOL’s letter, the DOL did not identify the gig-economy company at-issue but reaffirmed in general that such companies are, for similar reasons, properly able to characterize workers as independent contractors.

Source: NLRB General Counsel Advice Memorandum case no’s. 13-CA-163062, -158833 and -177483; DOL Wage-Hour opinion letter no. FLSA2019-6 (4/29/19).