Time is ticking on one of the last pro-labor vestiges of the Obama administration.
The National Labor Relations Board is set to make its case against contract language used by Uber to prevent collective action against allegedly abusive bosses.
The Ninth Circuit Court of Appeals said Tuesday that the Board could join plaintiffs in proceedings set to be held on Sept. 20.
The case comes weeks before a Supreme Court clash over similar impositions on workers, and months before President Trump will have the opportunity to replace the agency’s General Counsel. Richard Griffin, who was appointed to the top agency legal role in November 2013, will see his four-year term expire in November.
Griffin was given the job after the Obama administration had tried to name him as an NLRB member, in a recess appointment that was invalidated by federal appellate judges. Senate Republicans then blocked his nomination to the Board, but didn’t filibuster his General Counsel appointment.
The case against Uber is centered on the legality of so-called forced arbitration clauses preventing class action lawsuits. The contract terms feature in the Ninth Circuit Uber battle, which is ultimately over whether the Silicon Valley giant misclassified its drivers as “independent contractors.”
If considered “employees,” Uber drivers would have the right to seek “tips, expense reimbursements, overtime and other benefits,” as Law360 noted. More broadly, they would have the right to organize for “collective bargaining or other mutual aid or protection,” under the National Labor Relations Act.
Whatever the eventual outcome, the Uber case will be likely be eclipsed by the result of another labor law wrangle taking place before Griffin’s departure. On Oct. 2, the Supreme Court is set to hear arguments in a case that will determine the legality of forced arbitration clauses in employment contracts.
Uber was featured in that fight recently, when Susan Fowler filed a brief on Aug 16. arguing that Justices should prohibit forced arbitration clauses imposed by bosses.
Fowler had posted a 3,000-word blog post in February, alleging that Uber created a work environment hostile to women. The account revealed how Fowler’s ex-manager tried to have sex with her, and that Uber refused to punish him, after she spurned his advances and complained.
The claims led Uber to commission an inquiry led by Obama Attorney General Eric Holder. The investigation “documented an aggressive culture,” as Bloomberg noted, and led to the ousting of former CEO Travis Kalanick and 20 other employees.
“Class action waivers take from these workers the concerted activity in which they are most likely to engage, and from which they are most likely to benefit: The right to engage in collective litigation,” Fowler’s Supreme Court brief stated.