Richard Reibstein, a Partner in Locke Lord’s Labor and Employment Practice in New York and co-head of the Firm’s Independent Contractor Misclassification and Compliance Practice, was quoted in a Bloomberg Law article describing an Advice Memorandum issued by the General Counsel’s Office of the National Labor Relations Board (NLRB) finding Uber drivers to be contractors, not employees. Under the Memo, unions representing drivers have no right to file unfair labor practices on behalf of drivers because the law only covers employees, not independent contractors. Reibstein pointed out the Advice Memo will not be open to review by an appellate court in the same way a decision by the NLRB would be.
“Whereas a decision by the full five-member NLRB is generally ‘appealable’ to a federal appellate court, decisions by the General Counsel’s Office not to issue an unfair labor practice are not subject to judicial review,” he said.
Reibstein went on to explain the NLRB’s memo will have limited impact.
“The crazy quilt of state law tests for independent contractor status is not affected by the issuance of the Advice Memorandum,” he said. “The primary battleground for independent contractor misclassification issues remains at the state level.”
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