Can Uber Fire Drivers for Tweeting About Uber?

A driver says Uber deactivated him for tweeting something critical about the company. Is that legal?

In an e-mail, reported on Thursday by BuzzFeed’s Jacob Fischler, an Uber manager told Christopher Ortiz, who wanted to start driving again after taking a few months off, that he was out of luck. “Sorry Christopher,” the manager, “John H.,” wrote. “Your account has been permanently deactivated due to hateful statements regarding Uber through Social Media. ‘Driving for Uber, not much safer than driving a taxi.’ Best of luck. UBER on!”

That “not much safer” quote is apparently lifted from a tweet Ortiz sent out in August:

After Fischler’s article was published, Ortiz’s fortunes changed:

Uber also e-mailed BuzzFeed saying cutting Ortiz off had been “an error by the local team” and that “we apologize to this highly rated driver partner for the inconvenience.” (Asked for comment, Uber sent the same statement.)

The Ortiz fracas threatened to bring Uber more bad press, but the fact remains that Uber drivers—like many truck drivers and taxi drivers—don’t have much else by way of recourse. Because they are independent contractors, not employees, they aren’t covered by the 1935 National Labor Relations Act. (Sometimes, as in a case this month at FedEx Ground, the National Labor Relations Board has sided with workers who say that under law they’re actually employees, and not contractors as their companies had claimed.) While independent contractors—from fashion models in New York to Uber drivers in California—have banded together to try to improve their working conditions, they’re doing it without the legal protections designed to shield other U.S. workers.

What if an employee tweeted something like Ortiz did? It depends. The National Labor Relations Act restricts companies from punishing workers for taking collective action to improve their working conditions, or threatening or interfering with their efforts to do so. A series of Obama-era NLRB cases have confirmed that using social media, under the right circumstances, can qualify as the kind of “protected concerted activities” shielded by law.

Among the questions the NLRB would ask in considering a tweet: Was it so offensive that it forfeited legal protection? How directly was it related to the employee’s working conditions? And—even if only one employee tweeted—was it related to, or trying to instigate, some kind of collective worker protest?

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