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You May Be An Uber Driver, But You’re Not An Employee

Rideshare services and apps, such as Uber, have changed the way we commute, travel, entertain, make money, and even eat! Gone are the days when you had to hail a taxi from the sidewalk to get to your destination. With apps like Uber, you can use the app on your smartphone to request a ride to your destination in a matter of seconds. Riders also have the ability to track their driver’s arrival, view their driver’s profile and rating, add stops to the ride, and much more. In fact, Uber now offers Uber Eats, an online food ordering and delivery app, which allows customers to order meals from local restaurants.

But How Can You Make Money?

While Uber, and the like, provide many benefits to its customers, drivers are also rewarded. These rideshare companies employ drivers of privately-owned vehicles to transport customers and, in some cases, deliver food. Drivers are compensated for each ride they complete, often receiving a percentage of each ride fare and certain cancelled trips. Drivers also have the ability to receive tips from customers. Uber even offers affordable cars for drivers use when they do not have access to one.

I’m Making Money, But Am I An Employee?

If you are a driver for a rideshare app, like Uber, you may be under the preconceived notion that you are, in fact, an employee of the company. If that is your assumption, you are mistaken. In fact, on May 14, 2019, the Office of the General Counsel of the National Labor Relations Board (“NLRB”) issued an opinion stating Uber drivers are independent contractors, not employees.

The NLRB based its determination that Uber drivers are independent contractors on its analysis of the 10-factor agency test under the National Labor Relations Act (“NLRA”). In its analysis, the NLRB found that Uber drivers have essentially unfettered control over their cars, work schedules, choice of log-in locations, and ability to work for competitors. Essentially, the NLRB noted that Uber drivers have “entrepreneurial independence.”

I’m Not An Employee, But What Does This Mean?

As an independent contractor, Uber drivers, and drivers of other rideshare companies, are not afforded the rights under the NLRA, which include, but are not limited to, the right to form and/or join a union and the right to engage in concerted activity (i.e., the right to discuss with co-workers work-related issues).

Further, it is important to note that this decision comes shortly after the Department of Labor Wage and Hour Division’s April 29, 2019 decision that service providers working for virtual marketplace companies (“VMCs”), which provide services such as transportation, delivery, household services, etc., are considered independent contractors, and not employees, under the Fair Labor Standards Act (“FLSA”). As such, Uber drivers may be considered independent contractors under the FLSA, as well as the NLRA.

For more information and to determine whether you may be classified as an independent contractor versus an employee, please contact the attorneys at York Bowman Law, LLC.

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