The legal test that determines whether a worker is an independent contractor or an employee could be under scrutiny from the National Labor Relations Board. The NLRB recently invited public briefing on how to classify workers, which means the federal government is possibly considering changing those guidelines, per Bloomberg. So cue the PR blitz from Uber and Lyft.
It’s too early to tell right now, but this could be good for workers and bad for the tech companies, which refuse to acknowledge that the folks doing the work are, in fact, their workers and not just people who stumbled onto a delivery.
Companies like Uber and Lyft have relied on passing state ballots to classify drivers as independent contractors, excluding them from worker benefits and protections. But if the NLRB is considering changes, it could point to something concrete coming up, as former NYT journalist Steven Greenhouse noted:
This shouldn’t be a big surprise because the top labor lawyer at the NLRB, Jennifer Abruzzo, indicated that she planned to review guidelines set in place by her predecessor in 2019. These had “lowered the legal threshold for employers to classify workers as independent contractors,” as Bloomberg reported.
Changing the guidelines won’t guarantee tech companies will stop classifying their workers as independent contractors, but it’d make it harder for them to do so. In fact, the NLRB could try making misclassification a violation altogether, per Bloomberg:
The general counsel’s office may push forward cases that result in a board ruling that makes it harder for companies to classify workers as contractors, something gig economy companies have been fighting with state ballot measures. In addition, Abruzzo is eyeing a change in precedent to outlaw misclassifying a worker as an independent contractor—making it an unfair labor practice in itself.
If the NLRB went ahead and changed the guidelines, that’d be a boon for delivery and ride-hailing app drivers (and riders, too.) But if just misclassifying workers were a violation of federal labor law, it’d be a big deal. That wouldn’t just grant workers their due benefits and protections as employees, but it would also make the tech companies liable for illegal business practices. Finally.