NLRB General Counsel: Uber drivers are independent

Mike Zinser

The Division of Advice within the NLRB general counsel's office recently issued a memorandum describing why it believed Uber drivers should be considered independent contractors, not employees for purposes of the National Labor Relations Act.  For that reason, charges filed by Uber drivers were dismissed.

The general counsel believed the Uber drivers to be independent contractors for two key reasons:

1. Uber does not exert enough control to be considered an employer. Drivers have complete control of their schedules and can log on or off the platform at any time for any reason. The Uber drivers provide their own equipment.
2. Uber drivers control their own entrepreneurial destiny. The Uber drivers are allowed to perform driving services for competing services such as Lyft or other transportation-related business.

Union employees denied new holiday

After a profitable quarter, the employer granted only its non-union employees a one-time paid day off to show its appreciation for its employees. A union filed an unfair labor practice. The represented employees were excluded for two reasons:

1. The employer was not inclined to encourage the union to bargain over granting this additional benefit because the union had in the past refused to agree to the company's requested midterm contract changes.
2. Unilaterally granting the benefit would violate the National Labor Relations Act.

The NLRB ruled that it "has long recognized that an employer has the right to treat represented and unrepresented employees differently, so long as the different treatment is not discriminatorily motivated." The board found the employer's justifications were lawful. If the unions were "unwilling to entertain proposed midterm modifications and insisted on adhering to the terms of the contracts ... the unions were going to have to live with the limitations of their contractual benefits along with their advantages." 

The board agreed that unilaterally granting the holiday would constitute a unilateral change and a violation of the act because the parties' collective bargaining agreement specifically addressed holidays.

In conclusion, the board decided that the employer's decision to exclude the union employees was simply a reflection of the "competing forces and counteracting pressers that were a part of the collective bargaining relationship."

NLRB recognizes private property rights

Overturning a 38-year-old precedent, the NLRB recently ruled that employers may lawfully prohibit non-employee union solicitation in public spaces on their property absent evidence of discriminatory enforcement.  In the past four decades, the NLRB has forced employers to allow non-employee union organizers to engage in solicitation in areas such as cafeterias and restaurants where the employer had opened up its private property to the public. The new decision reverses this. 

In the particular case, the employer removed two non-employee union organizers from the cafeteria; the non-employee union organizers were sitting at tables on which they had displayed buttons and pins. There was another non-employee in the cafeteria eating lunch with an employee of the company. That individual was not removed. The new decision eliminates the so-called "public space" exception. The board ruled that to allow such exception was irreconcilable with well-established Supreme Court precedent. The board specifically stated:

"An employer does not have the duty to allow the use of its facility by non-employees for promotional or organizational activity.  The fact that a cafeteria located on the employer's private property is open to the public does not mean that an employer must allow any non-employee access for any purpose."

Bottom line, employers are no longer required to allow non-employee union solicitation in areas of their property just because these areas are open to the public. Employers are again in control over what activities may take place on their private property.

Title VII charge filing is not jurisdictional

An employee filed a charge of discrimination alleging sexual harassment and retaliation. She later amended her intake questionnaire to include religious discrimination but did not amend her EEOC charge. The employee filed a lawsuit alleging both retaliation and religious discrimination. At that point, the employer did not challenge the allegation of religious discrimination in the complaint. 

The court granted summary judgment in favor of the employer. The Court of Appeals reversed.  At that point, the employer filed a second motion for summary judgment alleging that the employee failed to exhaust administrative remedies on the religious discrimination claim.  The employer was arguing that the actual charge was never amended to include religion. The District Court granted the motion, ruling that administrative exhaustion is a jurisdictional prerequisite. The Court of Appeals reversed again. The employer then appealed to the U.S. Supreme Court. The U.S. Supreme Court sided with the plaintiff.

The court held that Title VII's charge filing instruction is not jurisdictional. Rather, it is a procedural requirement that can be waived. In this case, because the employer did not raise it in its answer to the original complaint, the employer waived that defense. The employee is required to include all claims in the charge. However, if the employer does not raise the issue in a timely manner, it is waived.

The message is clear for employers: Raise the issue of failure to exhaust administrative remedies right away or waive it.

Facebook video kills employee FMLA claim

An employee was on an approved FMLA leave from his job. While on leave, he decided to go on a fishing trip and a coworker started live streaming the fishing trip on Facebook. Another coworker showed the video to the employee's supervisor who fired him for dishonesty.

The U.S. District Court in California easily concluded that the employee had dishonestly used his leave by going fishing. Significantly, the court rejected employee arguments that the fishing trip was not inconsistent with his medical restrictions and he went fishing between the hours of his normal shift. The court ruled that dishonesty was the employer's motive for discharge. Dishonesty is clearly a lawful basis for termination.

L. Michael Zinser is the founding partner of The Zinser Law Firm in Nashville, Tenn. The firm, which has a heavy concentration of clients in communications media, represents management in the area of labor and employment. Zinser can be reached at (615) 244-9700 or mzinser@zinserlaw.com.