A proposal by Seattle City Councilmember Mike O’Brien would grant Uber drivers and similar independent contractors the right to collectively bargain, potentially setting a far-reaching precedent in U.S. labor law.
A Seattle elected official says he has a plan to help independent contractors such as Uber drivers unionize in pursuit of better working conditions and pay, but whether the strategy would hold up in court is unclear.
City Councilmember Mike O’Brien will introduce legislation next week that would give taxi drivers, for-hire drivers and drivers for app-based transportation-network companies such as Uber and Lyft the right to collectively bargain with those companies — like union members who, as employees, have bargaining rights under federal law.
The legislation would apply strictly to drivers, but its enactment likely would carry implications for independent contractors in other sectors of the growing “gig economy.”
More and more companies are using apps to connect consumers with freelancers who give rides, make deliveries or perform household tasks. The companies tend to describe themselves as technology platforms, not employers.
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O’Brien says no city, as far as he knows, has passed legislation requiring companies to bargain with contractors, so his proposal should attract nationwide attention.
The legislation might also set a precedent with the potential to impact more traditional businesses that rely heavily on contract workers, such as Microsoft.
“This could be a game-changer,” said Charlotte Garden, a Seattle University professor specializing in labor law. “You could see cities like Seattle and states run with this model in all sectors of the economy. The legal fight over this would be intense.”
Seattle has been a leader recently in protecting workers, O’Brien said Monday, citing the city’s ordinances criminalizing wage theft, mandating paid sick leave and eventually raising the minimum wage to $15 an hour.
But independent contractors have largely been unable to benefit because they’re not classified as employees and therefore aren’t guaranteed bargaining rights under the National Labor Relations Act (NLRA), O’Brien said, describing companies like Uber as more exploitative than Wal-Mart because the big-box chain known for low pay must adhere to minimum-wage laws and commit money when it wants to open a new store.
In contrast, companies like Uber rely on drivers to buy and maintain the vehicles and help pay for insurance, O’Brien said.
“There are whole communities, whole industries, that are exempt from the type of worker protections we’re so proud of here in Seattle,” he said. “What’s happening with drivers is a race to the bottom.”
O’Brien’s legislation, which he hopes the council will pass next month, would set the stage for drivers to choose, by majority vote, a nonprofit organization to serve as their representative in negotiating with a company, he said.
Such organizations would need to be certified by the city and would receive driver lists from the city in order to organize.
Breakdowns in bargaining would lead to required arbitration, and the resulting contracts would be enforced by the courts rather than the National Labor Relations Board, which rules on conventional union-employer disputes.
The city would enforce the legislation by fining companies for noncompliance or by revoking their licenses to operate in Seattle, O’Brien said.
Takele Gobena, 26, said he quit an airport job more than a year ago because advertisements said he could make $25 an hour with Uber and Lyft.
But when the SeaTac resident calculated his earnings after a year of driving — expenses included, he realized he was making less than $3 an hour, Gobena said.
Gobena, who’s pursuing a bachelor’s degree while driving 55 hours a week, said O’Brien’s legislation would “give us a say.”
“I know Uber will probably deactivate me tomorrow, but I’m ready because this is worth fighting for,” the Ethiopian immigrant said.
Councilmember Jean Godden stood with O’Brien on Monday. Mayor Ed Murray is still reviewing the legislation.
Teamsters Local 117, which is providing assistance to Seattle’s fledgling App-Based Drivers Association and the Western Washington Taxicab Operators Association —membership lobbying groups without collective-bargaining rights — has been working with O’Brien.
He said the legislation would almost certainly provoke legal action against the city.
Kimberly Mills, a spokeswoman for City Attorney Pete Holmes, declined to comment Monday on what advice Holmes has given O’Brien, citing attorney-client privilege.
O’Brien said he’s confident the legislation would survive a court challenge.
The NLRA puts the federal government, not city and state governments, in charge of regulating collective-bargaining rights and union organizing for most employees.
San Francisco lawyer Stephen Hirschfeld, CEO of the Employment Law Alliance, said he can’t see the courts allowing O’Brien’s legislation to stand.
“Federal law is supposed to govern,” he said, warning that the alternative would open “a massive Pandora’s box.”
But Liz Ford, another Seattle University labor-law professor, said the proposal is novel and its logic strong.
Proponents would argue the NLRA can’t hold sway because it doesn’t cover independent contractors, Ford said.
Opponents would contend Congress excluded independent contractors from the NLRA purposefully so contractors would be unable to collectively bargain.
That reasoning could run into trouble because states have been allowed to grant bargaining rights to others excluded from the NLRA, such as state workers and farmworkers, Ford said.
Garden said the legislation might violate the Sherman Anti-Trust Act, which forbids collusion between contractors except in certain circumstances.
The council member is prepared for deep-pocketed Uber to fight the proposal; New York City Mayor Bill de Blasio sought to cap Uber’s growth in his city this summer, then backed away from the fight after a public-relations assault guided by the company.
“We know these companies are not afraid to play hardball,” O’Brien said.
An Uber spokeswoman, Kate Downen, declined to comment on the legislation, the text of which has yet to be released.
Downen said: “Uber is an important contributor to the local economy in Seattle — helping to create new opportunities for many people to earn a better living.”
Chelsea Wilson, a spokeswoman for Lyft, said the legislation “raises a wide range of questions, including concerns over the privacy rights (of drivers).”
Wilson said O’Brien’s legislation would appear to involve the city collecting lists of drivers from companies to pass on to driver-representative organizations.
There are ongoing efforts in other states to win rights for for-hire drivers by reclassifying them as employees. O’Brien’s legislation takes a different approach.
Seattle lawmakers last dealt with transportation-network companies last year, when the council passed an ordinance lifting caps on the vehicles while increasing insurance requirements.