Steve Swirsky Quoted in “NLRB Counsel Holds Uber Drivers Are Independent Contractors”

Material Handling & Logistics (MH&L)

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s New York office, was quoted in Material Handling & Logistics (MH&L), in “NLRB Counsel Holds Uber Drivers Are Independent Contractors,” by David Sparkman.

Following is an excerpt:

The NLRB’s General Counsel’s office issued an Advice Memo holding that drivers providing personal transportation services using … “app-based ride-share platforms” were independent contractors and not employees. The counsel’s office also directed NLRB regional directors in San Francisco, Chicago and Brooklyn to dismiss unfair labor charges that were filed in 2014, 2015 and 2016. …

The NLRB General Counsel’s Advice Memo notes that the analysis of these factors is qualitative and not “strictly quantitative” and that there is “no shorthand formula,” points out Steven M. Swirsky, an attorney with the law firm of Epstein Becker Green. The memo also notes that the board believes the question of whether the worker is assuming “the opportunities and risks inherent in entrepreneurialism” when combined with the other factors will be likely to lead to a finding of independent contractor status.

Keeping Options Open

What this means for businesses, Swirsky says, is that the NLRB “will continue to place great emphasis on whether an individual is taking risk in return for potential gain, finding that this is more consistent with an independent contractor relationship than an employer-employee relationship. However, the Advice Memo also indicates that the NLRB will continue to assess each situation based on its own unique facts.”