Outten & Golden: Empowering Employees in the Workplace

In Historic Ruling, NLRB Says Tucson Taxi Drivers are Employees

November 3rd, 2015 | AFL-CIO Now

afl-cio-logo__140430233329[1]In a groundbreaking ruling, the National Labor Relations Board in Tucson, Ariz., has determined that more than 200 taxi drivers employed by AAA Transportation/Yellow Cab are employees and therefore eligible for union representation.

The ruling is the first of its kind for taxi drivers, following a number of cases in which they were found to be independent contractors, and is in line with new analysis used in the FedEx Home Delivery, Inc. decision that found those drivers qualified as employees. The key clarification in that ruling was a consideration of whether the individuals have an “actual entrepreneurial opportunity for loss or gain” when determining whether they are independent contractors. In both the FedEx and Tucson drivers’ cases, it was determined that the opportunities for loss or gain were not “real or feasible,” and therefore, the drivers couldn’t be classified as independent contractors.

In his Oct. 23 decision, NLRB Regional Director Cornele A. Overstreet found that the employer, AAA Transportation/Yellow Cab, exerts significant control over the drivers in a number of ways, particularly by controlling the majority of business through its dispatch system—a system that the employer can modify at will and which directly affects the drivers’ income.

The case began more than two years ago when representatives of the Tucson Hacks Association petitioned the NLRB, challenging drivers’ status as independent contractors. At that time, the NLRB ruled against the THA. After filing a Request for Review, which the NLRB granted, the drivers sought assistance from the Office and Professional Employees International Union, which represents more than 4,000 taxi drivers in Las Vegas and San Diego.

“This group of drivers did as much as they could on their own,” said OPEIU International President Michael Goodwin. “Within three months of turning to OPEIU, we’re pleased to see a favorable decision from the NLRB and are now preparing for an election.”

The regional director has ordered an election, which is expected to take place before the end of the year.

This article was originally printed on AFL-CIO.org on October 30, 2014.  Reprinted with permission.

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