Uber Pay Case Idles Pending Supreme Court Decision

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By Jon Steingart

Uber Technologies Inc. and about 240,000 California drivers who say the company owes them minimum wage, overtime, and expense reimbursement have to wait longer to find out whether the case belongs before a judge or an arbitrator, following a federal appeals court order ( O’Connor v. Uber Technologies, Inc. , 9th Cir., No. 14-16078, order 9/22/17 ).

Uber argued to the U.S. Court of Appeals for the Ninth Circuit that the case belongs before an arbitrator because a provision in the company’s agreement with drivers requires them to arbitrate claims against the company as individual actions.

But Judge Edward Chen of the U.S. District Court for the Northern District of California allowed the case to proceed after concluding that the arbitration clause wasn’t enforceable because drivers have a right under the National Labor Relations Act to engage in concerted activity.

Appeal Withdrawn

The Ninth Circuit heard oral argument Sept. 20 in Uber’s appeal of Chen’s order. It ordered the appeal withdrawn Sept. 22 until the resolution of a trio of cases pending in the U.S. Supreme Court that ask whether an arbitration clause with a class action waiver violates the NLRA.

The Supreme Court is scheduled to hear oral argument in the cases Oct. 2, the first official day of its new term. It is likely to issue one decision that resolves all three cases.

Lichten & Liss-Riordan, P.C. attorneys Shannon Liss-Riordan and Adelaide Pagano in Boston represent the drivers.

Gibson, Dunn & Crutcher LLP attorneys Joshua Lipshutz in Washington; Kevin Ring-Dowell in Irvine, Calif.; and Theodore Boutrous, Jr. and Theane Evangelis in Los Angeles represent Uber.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editors responsible for this story: Terence Hyland at thyland@bna.com

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