By Pamela Wolf, J.D. On May 10, Uber Chief Advisor and Board Member David Plouffe (and President Obama’s former advisor) and the International Association of Machinists launched a new “independent guild” that will represent drivers who use Uber in New York City. The move followed a landmark $100 million proposed settlement last month that would resolve class actions brought by drivers in California and Massachusetts based fundamentally on charges it misclassified its drivers as independent contractors. The proposed settlement would maintain the drivers’ status as independent contractors, but it would also fund and facilitate the creation of a Driver Association and provide protection against deactivation for no reason. And there is movement afoot elsewhere around the country to extend protections to “gig” economy workers via legislation, for example, in Seattle and California. Could it be the Uber sees the handwriting on the wall? Class action proposal. The $100 million deal, filed with the court on April 21, would cover two class actions: O’Connor v. Uber Technologies, Inc., No. CV 13-03826-EMC (N.D. Cal.), and Massachusetts drivers covered by Yucesoy v. Uber Technologies, Inc., No. 3:15-00262-EMC (N.D. Cal.). It would also cover drivers who were excluded from the certified class in O’Connor (and whose claims are asserted in Colopy v. Uber Technologies, Inc., CGC-16-549696 (San Francisco Sup. Ct.). Under the deal, the Driver Association would be comprised of elected driver leaders who can create a dialogue for further programmatic relief that comes from the drivers themselves. Uber would meet quarterly with the elected leaders of this association to discuss and, in good faith, try to address driver concerns, the settlement agreement suggests. The Driver Association would not be a union, however, and it will have no right or capacity to bargain collectively. There is a question as to whether this type of apparently employer-dominated “meet and confer” association potentially could be considered unlawful under the National Labor Relations Act Section 8(a)(2), but because the proposed agreement retains the drivers’ classification as independent contractors rather than employees, the NLRA would not apply The agreement provides that Uber would only be able to deactivate drivers from the Uber platform for sufficient cause. Drivers would be provided with at least two warnings prior to many types of deactivations (except for reasons of safety, fraud, discrimination, or illegal conduct), a written explanation of the reasons for any deactivation, and an appeals process overseen by fellow drivers for certain types of deactivations. A low acceptance rate would not be grounds for deactivation. Should a driver not be satisfied with the result of the appeals process, the driver would be able to arbitrate her claim at Uber’s expense (and Uber would also pay all arbitration fees for arbitrations of certain other disputes as well, including claims stemming from an alleged employment relationship with Uber), the agreement stipulates. Time to change the Uber model? First, citing the benefits of the “gig” job, Plouffe called apps like Uber “a proven complement to public transit: they also help increase transportation options in traditionally underserved areas, cut drunk driving and reduce congestion through carpooling.” Less understood, Plouffe said, are “positive social and economic benefits that come from being able to push a button and earn money.” He pointed to Bureau of Labor Statistics data showing that 20 million Americans work fewer hours than they would like due to existing commitments, for example childcare or school. He also invoked a recent study by the University of Chicago, finding that half of all hourly workers have no say over the schedule set by their employers, for the notion that it’s hard to find flexible work. According to Plouffe, drivers who use Uber love the freedom to decide when, where, and for how long to work—being their own bosses. He called on-demand apps “a real alternative to debt” in a world where 47 percent of Americans say they couldn’t pay an unexpected $400 bill. Turning to the down-side of the “gig” job, Plouffe acknowledged that Uber, which will be six years old this summer, hasn’t “always done a great job working with drivers.” The company’s CEO said two weeks ago that it’s time for a change. NYC Drivers Guild. What is that change? Uber and the IAM are putting in place what they call an “innovative agreement”—an independent Drivers’ Guild designed to:
- improve communication between drivers and Uber;
- provide benefits without jeopardizing independence and flexibility; and
- give drivers who have been barred from the app an additional voice in the deactivation appeals process.
- regular meetings with Uber’s regional general manager and the New York City management team;
- the ability for individual drivers to appeal if Uber denies them access to the app—as well as representation from the Guild during the appeals process;
- discounted legal services, life and disability insurance, education courses, and roadside assistance; and
- access to an online worker center that will provide a central hub for driver assistance and resources.
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