Federal regulators could be rethinking the ‘contractor’ status of Uber and Lyft drivers and other gig workers

December 28, 2021, 8:44 PM UTC

The National Labor Relations Board, the federal agency that oversees private-sector labor practices, looks to be taking the first steps toward reconsidering how independent contractors are classified, in a move that could reignite the debate about the rights of workers at gig-economy employers including Uber, Lyft, and DoorDash

In a notice issued Monday, the NLRB called for companies, unions, and other interested parties to weigh in on whether a Trump administration standard for determining the independent contractor status of workers should be overturned. The public has until Feb. 10 to submit amicus briefs arguing their positions. 

While the NLRB didn’t announce its motives, labor experts and journalists who cover the agency saw Monday’s announcement as a significant step toward making it easier for workers to gain full-fledged employee status.

Monday’s notice is part of an ongoing case involving a union push by makeup artists and hairstylists for the Atlanta Opera. The agency is seeking public comment in a move that could potentially establish a new standard and overturn a 2019 decision that made it easier for companies to classify workers as independent contractors. 

The 2019 ruling established that workers’ status should be evaluated through the “prism of entrepreneurial opportunity.” The NLRB ruled that drivers for airport shuttle service SuperShuttle were independent contractors because they supplied their own vans, controlled their work schedule, and kept the fares they collected. 

By classifying a worker as an independent contractor, as is the case with many gig economy positions, companies can avoid paying benefits and effectively prevent workers from unionizing. 

The App-Based Work Alliance, which includes DoorDash, Instacart, Lyft, and Uber among its members, said in a statement Tuesday that policymakers need to listen to what workers want and to shape policies accordingly.

“App-based work is fundamentally different from traditional employee-based work, which is why people turn to it in the first place,” the alliance said. “One thing we consistently and overwhelmingly hear from workers is that they want to maintain their independence while also having access to benefits and protections.” 

The NLRB’s call for briefs on the topic of independent contractor status comes after NLRB general counsel Jennifer Abruzzo has signaled the agency may be up for reviewing the standard, specifically saying the SuperShuttle ruling “warrants further scrutiny.”

“There’s plenty of workers in the gig economy that I think are misclassified as independent contractors,” Abruzzo told Bloomberg earlier this month.

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