Lyft Gets Green Light on Two Employment Rules

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By Lawrence E. Dubé

Lyft Inc. can forbid employees from using its logo and confidential company information without violating the National Labor Relations Act.

That was the conclusion of the National Labor Relations Board’s Division of Advice in a June 14 memorandum to the agency’s San Francisco regional director. The memorandum was released July 13.

Teamsters Joint Council 7 argued in an unfair labor practice charge that the ride-hailing company’s policies interfered with employee rights to engage in union activity or concerted activities for their aid or protection, but Jayme L. Sophir, the division’s associate general counsel, said the policies are lawful under standards the board adopted in its 2017 Boeing Co. decision.

The memorandum illustrates how Boeing has changed the NLRB’s analysis of employment policies. The board’s regional office had determined the Lyft policies were overbroad and unlawful before the Boeing decision was issued in December.

Policies Pass New Labor Law Test

Lyft’s intellectual property policy prohibits employees from creating without permission any material using or derived from the company’s logo or business marks. Its policy on confidentiality prohibits use of “technical, financial, strategic and other proprietary and confidential information relating to Lyft’s business, operations and properties, including User information.” Users are the drivers and riders who utilize Lyft’s ride-hailing software.

The NLRB has held that an employer violates the law merely by maintaining personnel policies that interfere with employee rights. Like other ride-hailing companies, Lyft has argued that the drivers who use its software platform are independent contractors, rather than employees.

The Division of Advice memorandum doesn’t specifically disclose which Lyft employees may have been exposed to the allegedly unlawful policies.

Before Boeing, the NLRB could find an apparently neutral rule or policy unlawful if employees could “reasonably construe” it as restricting their rights under the NLRA. But Sophir said the board now balances the potential impact of rules on employee rights and the business justifications offered in defense of the rules.

The Division of Advice concluded that most activity covered by Lyft’s intellectual property policy wouldn’t be protected by the NLRA, and employees were “unlikely to be deterred from fair use of a logo on a picket sign by a rule in an employee manual.” Even if employees did refrain from using a Lyft logo in a protest or labor action, Sophir said, “it would not stop the protected concerted activity itself.”

The associate general counsel said employers have significant interests in protecting valuable logos, trademarks, and service marks that would outweigh any “peripheral” rights of employees under the NLRA.

The company’s confidentiality policy also was lawful because employees would not reasonably interpret the rule as limiting their federal labor law rights, Sophir wrote. Policies that forbid employees from disclosing employee contact information or facts about their wages and working conditions can be unlawful, the memorandum said, but employees would not likely read the Lyft policy about prohibiting such exchanges of information.

Finding both policies lawful, the Division of Advice informed the regional director that the allegations against Lyft should be withdrawn or dismissed.

The case is Lyft, Inc., NLRB Div. of Advice, Case 20-CA-171751, 6/14/18.

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