Uber, NLRB Clash Over 'Nationwide' Subpoenas Targeting Labor Policies

The NLRB subpoenas are part of an inquiry from the board into whether Uber drivers are statutory employees and thus protected by federal labor law.

Uber Technologies Inc. is urging a California judge to reject National Labor Relations Board (NLRB) subpoenas that seek nationwide information about the ride-sharing company’s relationships with its drivers.

Uber, represented by Littler Mendelson, on Monday said the labor board’s subpoenas, rooted in claims from two drivers in California, are “nationwide, overly broad and burdensome.”

The NLRB subpoenas are part of an inquiry from the board into whether Uber drivers are statutory employees and thus protected by federal labor law. The agency says it cannot make that threshold determination based on information about only two drivers.

Uber’s lawyers pointed to court rulings over the past six years in which federal judges have questioned the merits of the Equal Employment Opportunity Commission’s nationwide discovery rooted in specific circumstances.

“The [NLRB] ignores the fact that courts consistently decline to enforce agency subpoenas seeking nationwide information on the basis of individual charges,” Littler Mendelson’s Robert Hulteng said in a court filing in the U.S. District Court for the Northern District of California.

Hulteng wasn’t immediately reached for comment Tuesday. The NLRB declined to comment.

NLRB lawyers challenge Uber’s assertion that courts have refused to enforce regulatory agencies’ nationwide subpoenas. Courts have upheld those subpoenas “when the matters under investigation are nationwide in scope,” NLRB lawyers Carmen Leon and Christy Kwon said in Monday’s court papers, filed jointly with Uber.

The NLRB pointed to a case in which a North Carolina judge ruled in August in favor of NLRB subpoenas that sought information from Raleigh Restaurant Concepts Inc., doing business as The Men’s Club of Raleigh. The subpoena dispute was related to a case in which an exotic dancer alleged that The Men’s Club misclassified performers as independent contractors.

The Men’s Club, represented by a team from Jackson Lewis, refused to disclose copies of rules and handbooks that apply to the company’s entertainers.

U.S. District Judge James Dever III of the Eastern District of North Carolina found the NLRB’s request “reasonably” related to the board’s investigation of alleged labor violations. The Men’s Club on Sept. 9 took the dispute to the U.S. Court of Appeals for the Fourth Circuit.

Regulators, in seeking national information, cited Uber’s estimation of having 700,000 drivers across the country.

“Because [Uber] operates nationwide, the threshold issue became nationwide, resulting in the subpoenas seeking nationwide information,” NLRB lawyers said in Monday’s court filing. “Thus, the scope of the subpoenas is not overbroad or irrelevant but is driven by the scope of Uber’s own business model.”

The subpoena dispute is unfolding as a recent Ninth Circuit ruling places a major challenge to Uber’s class action waivers in front of an arbitrator, not a federal judge. The appeals court ruled on Sept. 7 that drivers suing the company could be bound by arbitration agreements.

The ruling was a big victory for Uber, which has faced with a barrage of suits over employment issues like driver classification and background checks in recent years.

Mike Scarcella, Senior Editor, contributed to this story.

Originally published on Law.com. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Contributing Author

Rebekah Mintzer

Rebekah Mintzer is one of the staff reporters at Corporate Counsel and Law.com. You can email her at rmintzer@alm.com or follow her on Twitter 

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