Regulator launches Gig Workers Status Consult

The National Labor Relations Board, an independent US federal agency that oversees union activity and workers’ rights, on Monday (December 27th) launched a invitation the public to submit briefs indicating whether the agency should reconsider its standard for determining workers’ independent contractor status.

This extensive consultation stems from an individual application filed by a group of makeup artists, wig artists and hairdressers who claim to be employees of The Atlanta Opera Inc. and not independent contractors.

the NLRB decided to take the opportunity to ask the public whether the “independent contractor standard” should be revised and, if so, whether the NLRB should revert to an earlier standard. A possible change to the standard wouldn’t mean that concert workers would automatically be classified as employees, but it could make it easier for them to prove it.

The “independent contractor standard” is based on the traditional common law agency test, which analyzes all the relevant factors to determine whether an entrepreneur “provides services in the context of an independent business”. If the NLRB were to change the standard and revert to the previous interpretation, it could put more emphasis on “economic dependence” between contractor and employer. The Council also leaves the door open for the adoption of a new interpretation of the standard, but without further details on what this standard could be. The consultation will be open until February 10, 2022.

With this consultation, the NLRB wants to see if there is an appetite among companies and employees for a further change in labor relations. While this is only the first step in revising a standard, and not a change in the law to reclassify workers, it shows that the current status of temporary workers may not work well. integrate into the legal framework, as Uber has consistently proven across the country and elsewhere. .

The status of Uber’s drivers has raised concerns among regulators since its inception. First in Europe, where the company tried to be classified as a software company rather than a transport company and it didn’t work. Then, drivers started to file individual claims in European courts to challenge their status as “contractor”, and they won in many cases. And finally, just this month, after the avalanche of cases in different courts, the European Commission decided to propose a new regulation establishing that, if certain conditions are met, concert workers working for platforms like Uber will be considered as employees, with access to paid leave. , retirement and other benefits. Additionally, in 2021, the UK Supreme Court issued a landmark ruling declaring that two Uber drivers should be considered workers (an intermediate figure between self-employed and employed). The move forced Uber to reclassify 70,000 drivers in the UK

See also: EU workers could be reclassified as employees

In the United States, Uber is also waging a few legal battles where the status of its drivers is at stake. Perhaps the best known is that of California, where a state law will require drivers to be classified as employees. While Uber and other app-based rideshare and delivery companies found a way to be exempt from this requirement, the so-called Proposition 22, this proposition was overturned by a judge who considered the measure. unconstitutional. Uber and other companies have said they will appeal the decision.

As more and more cases can be brought before the NLRB to rule on the decision between the concert workers and the employers, the agency probably wants to ensure that most of them are treated with the “standard of”. independent contractor ‘most appropriate. The NLRB may take a more phased approach under the Biden administration. NLRB General Counsel Jennifer Abruzzo recently commented in an interview with Bloomberg: “There are a lot of workers in the odd-job economy who I think are misclassified as independent contractors. It’s not like all or nothing. Each case is specific to a fact.