Seattle may try a novel legal approach to helping Uber drivers to unionize — and potentially other independent contractors too, if the idea holds up in court.
Today, a Seattle City Councilmember is expected to announce legislation that would grant all for-hire drivers in the city the right to collectively bargain with the companies they contract with to provide services, which they currently can’t do under federal law, setting up an entirely new system.
Over the past few years, taxi drivers have affiliated with unions in cities across the country. But since they’re usually independent contractors, they’re not covered by the law that allows them to negotiate directly with taxi companies, like other private-sector employees can. Their only power is to try to influence how cabs are regulated, which determines their pay and working conditions.
So far, that’s worked out alright for taxi drivers, who’ve worked with the Teamsters in Washington State to make their case in Olympia — especially when they’ve banded together with taxi companies to keep rates high. But the state hasn’t seen fit to tightly regulate online platforms like Uber and Lyft, which will sometimes cut their rates in order to compete with each other in different cities.
That leads to insecurity for the drivers.
“I thought I was going to be having my own car, having my own schedule, making $1000 a week,” says Sereve Pekle, 28, a Seattle taxi driver who switched over to Uber about a year ago. “The reality was completely different.”
Pekle says he ended up making less money as more drivers joined Uber’s network. Now, he drives a few hours a week and does sales on the side, which helps him make payments on the Uber-compliant car he bought. With the cost of gas, insurance, and Uber’s cut of the proceeds, "you are not making anything,” he says. “It’s like minimum wage."
Pekle has joined Washington’s App-Based Drivers Association, which contracts with the Teamsters to advocate for the drivers’ interests. It’s better than nothing, he thinks, but drivers are still at the whim of Uber’s decisions.
That’s why Seattle City Councilmember Mike O’Brien concluded that allowing drivers to bargain with the companies themselves might work better than depending on regulation to improve working conditions.
“The reality in an industry that’s evolving rapidly is that as a regulatory body we’re not going to keep up,” O’Brien says. “And there’s so much more power in allowing the workers to decide by themselves through collective bargaining, these are the terms under which they want to work.”
Here’s how the new system , which will be formally introduced in the Council next week, would work: Drivers would vote on a non-profit organization to serve as their “exclusive driver representative,” which would then negotiate a contract with the company. If the two parties fail to come to an agreement, they have to submit to arbitration. The resulting contract would be enforced through the courts, rather than the National Labor Relations Board, which unions have found to be slow and sometimes ineffective in deterring employers from violating contract terms.
If it worked, it could theoretically be extended to cover other kinds of independent contractors, like the port truck drivers who ferry containers from docks to rail yards and warehouses, or other workers on internet platforms like Taskrabbit.
But there’s a substantial possibility that the strategy wouldn’t hold up in court.
There is some precedent for states allowing groups of workers not covered by the federal National Labor Relations Act to collectively bargain. That’s what happened with public sector workers, for example (which is why some governors, like Wisconsin’s Scott Walker, have been able to take their collective bargaining rights away). Some states have even allowed agricultural workers to join unions, outside federal law.
But some legal experts think that because Congress explicitly excluded independent contractors from the NLRA, they might have intended to prevent states from letting them join unions as well. “That pre-empts state or local governments from saying 'no no, they do have rights,’” says Jeffrey Hirsch, a professor at the University of North Carolina School of Law. “I do not see this going anywhere.”
O’Brien’s office and the Teamsters disagree, but say they do expect a legal challenge if the measure passes. In a city that elected a socialist and passed one of the county’s first $15 minimum wages, it may have a shot.
Uber said it couldn’t comment on legislation it hadn’t seen yet.
Meanwhile, Uber drivers in some states are saying that they shouldn’t be independent contractors at all — and courts have started to agree, which could eventually give Uber drivers the right to organize through normal means.
That hasn’t happened in Washington State yet. And if O’Brien and the Teamsters’ strategy works, they might not bother trying to argue that Uber drivers are employees, which could upend traditional labor organizing.
“This is a very interesting question because no one is contesting in that context that Uber drivers are independent contractors,” said Harris Freeman, a professor at Western New England School of Law. “Until there’s an attempt to litigate Uber drivers’ status under labor law proper, we’re going to see these alternative forms of worker organizing.”