NLRB Fights to See How|Uber Handles Its Drivers

     OAKLAND, Calif. (CN) — A federal magistrate delayed ruling on whether Uber must give information over whether it misclassified drivers as independent contractors to the National Labor Relations Board, though the denial of a settlement in a related case might force her hand.
     Following a contentious hearing on Thursday, U.S. Magistrate Judge Kandis Westmore said she would take oral argument by Uber and the labor board under consideration and issue an order “very shortly.”
     The labor board wants Uber to comply with two subpoenas it issued for information on all current and former Uber drivers so it can investigate multiple complaints filed against Uber throughout the United States.
     In two separate lawsuits filed in San Francisco and Los Angeles in September 2015, Uber drivers Catherine London and John Billington accused the company of violating the National Labor Relations Act by requiring them to sign arbitration agreements waiving their right to file or participate in class actions against it.
     Drivers have also filed suits against Uber in New York, Chicago, Phoenix, Kansas City, Missouri, Newark, New Jersey, and Tampa, Florida. Not all of those cases involve the company’s arbitration agreements.
     Because the arbitration agreements would only be unlawful if drivers are employees, the labor board says it must determine whether Uber drivers are indeed employees or if — as Uber contends — they are independent contractors. The board can only make that determination if it has access to information on all current and former drivers, it says.
     Uber has refused to comply with the subpoenas, arguing that because they only reference the London and Billington suits only information on those two cases needs to be provide, which the company says it has done. It argues that even if London and Billington are classified as employees, the arbitration provisions in the licensing agreements they signed are legal.
     Westmore indicated on Thursday that she was inclined to grant Uber’s motion to stay the labor board’s application for an order pending preliminary approval of a settlement in a similar class action — O’Connor et al. v. Uber Technologies, Inc.
     However, U.S. District Judge Edward Chen denied preliminary approval of that settlement late Thursday, finding that it was neither fair nor adequate and noting that the court had received “numerous” objections to it by both individuals and attorneys representing drivers in other California suits.
     Under the O’Connor settlement, the California drivers would have agreed that they are independent contractors and withdrawn their charges, according to Westmore.
     “Judge Chen is going to make a decision at some point about whether to approve [the O’Connor settlement],” Westmore said. “If the two people from California withdraw their case and you only have people from other regions, it seems to me you could serve the subpoena somewhere else.”
     She added: “It makes sense to wait and see if we have a resolution of that because it could eliminate those charges entirely, and you would still have the ability to investigate the underlying issue.”
     National Labor Board Relations Board attorney Carmen Leon told Westmore that the labor board needs to determine whether Uber drivers are independent contractors or employees regardless of whether the California claims in O’Connor are dropped.
     “If the parties enter into a settlement agreement with respect to these two charges, it doesn’t take away the fact that this question still exists and the issue is nationwide,” Leon said. “The question of whether the drivers are employees and covered by the act has to be determined.”
     And countering Uber’s contention, Leon explained that even though the labor board filed its subpoenas in California, and despite the subpoenas only referencing the Los Angeles and San Francisco suits, it has made clear to Uber that it requires nationwide information to investigate the employment status of drivers to decide whether the company’s arbitration agreements are legal.
     “The [California] charges set in motion the investigation, but it’s not limited to these two individuals,” Leon said. “We would still need nationwide information regardless of where the subpoenas were filed.”
     Uber attorney Robert Hulteng told Westmore that the labor board can still investigate the claims filed against the company both in California and elsewhere even if she grants its motion for a stay.
     “I don’t think the hands of the [labor board] are tied in any way by a stay,” Hulteng said. “With respect to these two cases, Uber has provided every scrap of paper it had. If the [labor board] wants to have its test case on employment status, it has all the information and ammunition it needs.”
     Leon disagreed.
     “If we had all the information we need, we wouldn’t be here,” she said. “The information provided to date is not sufficient to make a determination on this threshold issue.”
     Leon told Westmore that Uber has “hampered” and “impeded” the labor board’s investigation and that without the requested information, it can’t move forward with any of the cases pending before it.
     According to a March opposition filed by Uber, the labor board has subpoenaed 107 interrogatories and 34 documents on the company’s policies regarding driver onboarding, training, payments and monitoring, as well as information on transportation and surge pricing, rider feedback, algorithms within the Uber application and its arbitration agreements.
     Hulteng is with Litter Mendelson in San Francisco.

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