It feels like just piling on at this point, but to add to the city’s legal troubles, yesterday a group of Uber drivers filed a lawsuit against the City of Seattle over the ordinance granting drivers the right to collective bargaining.
The suit, filed by the anti-union National Right to Work Legal Defense Foundation and the Freedom Foundation, alleges that the ordinance violates several provisions of the National Labor Relations Act. The drivers ask for a preliminary injunction on enforcing the ordinance while the lawsuit plays out.
The premise of their legal argument is that Uber drivers are independent contractors, not employees, and thus when the city’s ordinance declares a union to be an Exclusive Driver Representative, it is barring Uber from doing business with other independent contractors, and forcing independent contractors to join the union — practices prohibited under the NLRA section 8 (b)(4). Likewise, it argues that the ordinance violates the First Amendment by prohibiting drivers who choose not to join the union from doing business with Uber as independent contractors.
They also claim that the Drivers Privacy Protection Act prohibits Uber from giving a union a list of qualified drivers and their drivers license numbers, as required under the ordinance. But a closer read of the law shows that the law permits it “For use in connection with the operation of private toll transportation facilities.” (18 USC 2721 (b) (10)) So it’s not clear that argument will hold up in court, though the drivers cite case law saying that “organizing a union” is not one of the permissible uses.
The legal floodgates opened when the City recently certified its first Qualified Driver Representative, Teamsters local 117. That action set a deadline for Uber and Lyft to deliver to the union a list of their qualified drivers. Uber (and the US Chamber of Commerce) objected to that because the company sees their driver list as company-confidential information with high competitive value, and of course simply because they are dead-set against allowing their drivers to unionize. That’s why they structured their company to have drivers be independent contractors, rather than employees. UPS and FedEx have used the same tactic.
Don’t expect a speedy resolution to any of this. The question of whether Uber drivers are properly classified as employees or contractors is a hotly contested legal issue in many courts across the nation. In 2015, a California judge ruled that they are really employees. A separate class-action lawsuit is winding its way through the federal court system. That issue will need to be resolved before the National Labor Relations Act can be properly interpreted as it relates to the Seattle ordinance. And, of course, since much of the “gig economy” is based on treating workers are independent contractors, the repercussions of that decision are huge.
What will happen quickly, however, is a ruling on the request for a preliminary injunction so that Uber isn’t forced to hand over its list of qualified drivers. That’s the kind of irreparable, irreversible harm that preliminary injunctions are often granted to stop while the larger legal issues play out — though in order to grant the injunction the judge will need to rule on the likelihood that the drivers’ case will eventually succeed on its merits, implicating all the bigger questions once again. Uber must deliver the driver list to the Teamsters by April 3, and that deadline will drive the short-term schedule in both this case and the Chamber of Commerce case.