As expected, this morning the Council voted out of committee a bill that would make a major change to the 2015 ordinance authorizing Uber and Lyft drivers to organize for the purposes of collective bargaining.
Today’s bill stripped out authorization for drivers to negotiate compensation, and prohibited the city from passing regulations related to collective bargaining of compensation. It passed by a 3-0 vote, with Council members O’Brien, Herbold and Harrell voting for it, and will move on to the full Council in January.
O’Brien and Harrell put their best spin on it, saying that their goal in making the change was to preserve the city’s “flexibility” in how to deal with compensation for drivers. O’Brien noted that as with taxis they can set minimum fares and probably a minimum wage. New York City just passed a minimum wage for Uber and Lyft drivers.
But the positive spin is mostly empty, since the real impetus for the bill is the city’s recent partial-loss in the 9th Circuit Court of Appeals. The city had argued that the city had a “state-action exemption” from the Sherman Antitrust Act, but the appeals court found otherwise and sent the case back down to the district court to hold a trial on whether the ordinance’s pay-related provisions constitute illegal price-fixing under the Sherman Act. The good news from the 9th Circuit was that it found that independent contractors are not generally prohibited from collective bargaining under the National Labor Relations Act to the extent that the topics of bargaining aren’t prohibited by the Sherman Act or other statutes.
In this context, today’s bill is an attempt to get out from under the Sherman Act. Removing compensation as a topic of collective bargaining arguably defeats the argument that it is price-fixing. Meanwhile, drivers can still bargain on a number of other workplace-related issues.
O’Brien was clear on this point last week when he and Harrell appeared on the Seattle Channel’s “City Inside/Out” program. And the city made the same point in a filing with the district court judge, in which it asked for an extension of the schedule until after the Council passes today’s bill (though the plaintiff believes that doesn’t resolve all the legal issues in the case).
Once this gets through, look for a follow-on bill in 2019 directly addressing TNC rates and compensation for drivers.