Outten & Golden: Empowering Employees in the Workplace

How Does the Passage of AB 5 in California Affect Me and Others in the Gig Economy?

September 18th, 2019 | Patrick R. Kitchin

Today Governor Gavin Newsom signed into law Assembly Bill 5.  The untitled new law will have a significant impact on the gig economy in California.  It will be increasingly difficult to lawfully classify California workers as independent contractors.  With the exception of several significant carveouts, which I discuss below, the definition of “to employ” announced by the California Supreme Court last year in Dynamex v. Superior Court (2018) 4 Cal.5th 903 will define the relationship between the hired and the hirer moving forward.  The core of the new law takes effect January 1, 2020.

Dynamex is Now the Law of the Land (Most of the Land, At Least)

Assembly Bill 5 codifies the ABC Test adopted in Dynamex for most California workers currently classified as independent contractors.  The ABC Test states that a hiring party “employs” a person (as an employee) unless it can prove each of the following:

  • The hired person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • The hired person performs work that is outside the usual course of the hiring entity’s business.
  • The hired person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

This three-pronged definition of “to employ” describes the prototypical independent contractor relationship:  a plumber, for example.  First, when I hire a plumber to fix a leak in my office, I do not exert any control of the performance of their work.  The plumber does their job based on their best judgment using their own tools.  Second, the plumber is not performing tasks that are within the scope of my law firm’s work.  While my legal practice is broad in scope, plumbing repairs is not something Kitchin Legal offers to any client.  Third, when the plumber finishes their work at my office, they will drive away in their company truck to another plumbing job for another client.  They are engaged in an independent trade.

But there are significant exceptions under the new law.  For a wide range of professionals exempted under AB 5, an older test of the employer-independent contractor will apply.  However, even the exemptions themselves have multiple requirements.

The Existing Borello Test Will Still Apply to a Substantial Number of Workers in California

Prior to the passage of Dynamex last year, California courts relied on the “economic realities test” or “Borello Test” to determine whether someone was engaged as an independent contractor or as an employee.  This test was announced in 1989 by the California Supreme Court in a case called S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.  In Borello, the high court set out a multiple-factor test for evaluating the relationship between the hirer and the hired.  While the most important indications of an employer-employee relationship under Borello are the hirer’s right to control the work of the hired person and the hirer’s right to terminate the worker at will, other factors are relevant to the determination as well:

  1. Whether the person performing work is engaged in an occupation or business that is distinct from that of the company;
  2. Whether the work is part of the company’s regular business;
  3. Whether the company or the worker supplies the equipment, tools, and the place for the person doing the work;
  4. The worker’s financial investment in the equipment or materials required to perform the work;
  5. The skill required in the particular occupation;
  6. The kind of occupation, with reference to whether, in the locality, the work is usually done under the company’s direction or by a specialist without supervision;
  7. The worker’s opportunity for profit or loss depending on his or her own managerial skill (a potential for profit does not include bonuses);
  8. How long the services are to be performed;
  9. The degree of permanence of the working relationship;
  10. The payment method, whether by time or by the job; and
  11. Whether the parties believe they are creating an employer/employee relationship.

Are You Excluded from the New Definition of “To Employ”?

Labor Code §2750.3 lays out the exceptions to the ABC Test for which the Borello Test will continue to apply.  Exempted from the new definition of “to employ” are insurance brokers, doctors, dentists, lawyers, architects, engineers, private investigators, accountants, human resource professionals, investment agents, marketing professionals, certain salespeople, commercial fishermen, repossession professionals, construction sub-contractors, referral agencies, motor clubs (think roadside assistance) and real estate professionals.  Freelance media-makers, including journalists, also are carved out of the ABC Test if they limit their contributions to any one media outlet to 35 pieces a year.  AB 5 directs the courts to use the Borello Test definition of “to employ” in cases involving these professionals, and not the ABC Test.

Who Will be Affected by AB 5?

The media are reporting that up to two million workers will be affected as they are reclassified under the law from independent contractor to employee.  While the media have focused primarily on the hundreds of thousands of Uber, Lyft and DoorDash workers who will affected, it is likely that the vast majority of affected workers currently work for small companies across the state.

Based on my experience representing misclassified workers in California, I have found that small companies, particularly tech start-ups, frequently classify workers as independent contractors because they believe it is easier and less expensive than hiring employees.  These employers fail to factor in the cost of the wage and hour lawsuit that may follow.

What Do Misclassified Workers Have in Common?

In all of my employee-side, misclassification cases, my clients were trained and controlled by the employers.  Their work hours were often scheduled by the employers.  They were subject to discipline if they failed to perform as expected.  They performed work directly related to the core business of the employers.  Many of them worked full time, had company business cards, company email addresses and in one case, a company credit card.  Almost all of them were paid by the hour.  One of them earned performance bonuses.  But, none of them was entitled to unemployment benefits based on their time working for these employers none was provided with workers compensation insurance coverage.

All of these workers ended their relationships with the employing parties because of a dispute over what and how they were paid, or over their opportunity to take meal and rest breaks.  While some of them had issues about how they were scheduled for work, most of them accepted fairly strict control over their work schedules in exchange for their earnings.  They all looked a lot like employees.

Finally, none of these clients fully understood the scope of the damages and penalties they were entitled to under California law until they spoke with an employment attorney.  Their hirers’ decisions to classify them as independent contractors led to a wide range of violations and valuable claims.

What Do Companies That Misclassify Employees Have in Common?

I also have represented a number of employers in several different industries who faced misclassification claims.  Based on my own experience, discussions with colleagues and the rich case law on the subject of the meaning of “to employ,” it is clear that companies that misclassify workers also share a number of characteristics.

First, most of these companies think they are saving money by avoiding the expenses of employing workers.  Second, many of these companies fail to put into place wage and hour policies that comply with California law.  Third, these companies typically do not have mandatory written sexual harassment and retaliation policies, and do not provide sexual harassment training to their workers as required by California law.  Fourth, most do not provide their workers with paid sick leave in compliance with state and/or local laws.  Fifth, these companies do not provide workers compensation insurance coverage.  Fifth, these companies fail to reimburse their workers for business expenses, including cell phone plans, internet costs and transportation costs.  Sixth, these companies do not comply with federal and state tax laws.  Seventh, all these companies are vulnerable to costly lawsuits and governmental audits.

What Do I think About the Law?

Subject to the section 2750.3 exceptions, classifying someone else as an independent contractor who performs work within your business establishment and within the usual course of your business operations still most likely violates the Borello TestIt certainly violates AB 5 and Dynamex.

Similarly, having someone perform work within the usual course of your business from a home office also likely creates an employer-employee relationship.  Under the ABC Test, it makes no difference whether the person signed an independent contractor agreement, sets their own hours, works relatively independently from direction or works from home.   The focus of the inquiry is much more limited.

As an employment attorney, I have always been suspicious of companies that have more independent contractors working for them than they have employees.  A disproportionate number of independent contractors might be evidence of an illegal scheme designed to avoid providing workers the benefits of employment: possible subterfuge.  Under the Borello Test (i.e., Economic Realities Test), the court should take into account what relationship the parties themselves were attempting to form when they entered into the working arrangement.  But the parties’ intentions do not matter under the ABC Test.  Even under Borello, however, the Supreme Court warned parties to classify workers with care. “The label placed by the parties on their relationship is not dispositive, and subterfuges are not countenanced.”

Finally, I have found that the harder it is to justify a decision to classify someone as an independent contractor, the more likely it is that the person is actually an employee entitled to all of the benefits given to employees under the law.

What Should a Misclassified Worker Do Now?

Claims for unpaid wages are governed by a three-year statute of limitations.  Under certain circumstances, a worker can reach back four years to recover unpaid wages pursuant to a misclassification claim.  If a person has been working as a misclassified worker for more than one year and has not been paid for all work time, and/or has worked overtime hours without overtime pay, and/or has not been provided meal and rest periods, and/or has not been provided complete and accurate paystubs, and/or has terminated for complaining about any of these things, that person should speak with a lawyer.

If a person is currently working as an independent contractor and wishes to make a smooth transition to becoming an employee of the hirer, they should also speak with an attorney.  As we move through this transition in California’s workforce, some employers are going to make efforts to pressure workers to sign illegal waivers of their right to obtain unpaid wages and penalties for past violations.  At this moment in our history, workers in transition should reach out to a competent lawyer for advice.

What Should an Employer Do Now?

The first step every employer who regularly relies on independent contractors should do is to consult with an employment lawyer.  This is a critical juncture for employers in California where risks that were once delayed for all sorts of reasons are at the door.  Assembly Bill 5 did not radically alter the law.  If a worker is deemed to be an employee under AB 5, it is most likely they will be deemed to have been an employee last week and last year in a lawsuit.

If hiring an employment attorney is not feasible, then employers should read about the new law.  Check with industry groups about the effect of AB 5.  Visit the website of the Division of Labor Standards Enforcement (“DLSE”) at https://www.dir.ca.gov/dlse/ I expect the DSLE will be issuing advisories he help in this transition.

Will AB 5 Slow “the erosion of the middle class and the rise of income inequality,” as it Promises in the Preamble?

By passing AB 5 into law, California has taken a substantial step in addressing the burgeoning gig economy and its impact on workers’ rights.  The law is based on the assumption that most workers are better off as employees than independent contractors.  Guaranteed minimum wage, paid sick and family leave, workers compensation coverage, unemployment benefits will be seen by many as a fair trade for giving up a little, or a lot, of scheduling flexibility.

Major critics of the law dispute this assumption and argue that this new law will be a jobs killer and will undermine the flexibility and profitability of the on-demand economy.  In June, Uber CEO Dara Khosrowshahi and Lyft co-founders Logan Green and John Zimmer, co-wrote an op-ed piece for the San Francisco Chronical in which they stated, “…, most drivers prefer freedom and flexibility to the forced schedules and rigid hourly shifts of traditional employment; and second, many drivers are supplementing income from other work.”  The new law, they have argued will require them to undertake a fundamental change in their business model and they warn of adverse effects on their operations and profits.

I am not certain who will be proved right over time.  This is only day one, but I am leaning heavily in favor of any law that provides additional benefits to workers and helps to level the economic playing field.  What is certain is that AB 5 is now one of the most complicated labor laws on California’s books.  The core of the new law, Labor code § 2750.3, is nearly 4,000 words long, has a total of 109 separate paragraphs and makes reference to a host of other California codes and regulations.  AB 5 also defines two distinct employment tests by reference to two California Supreme Court decisions separated in time by 30 years.  Borello has a lengthy citation history as appellate courts have wrestled with its meaning and application.  Already, Dynamex has been cited in nearly a hundred court decisions.  Of course, no matter how clearly written, no appellate decision is immune from different interpretations by parties advocating from different positions over different interests.

The way these two pivotal cases and Assemble Bill 5 are applied to the thousands of employee misclassification claims that will be made in the coming years will define the nature and scope of the employment relationship in California with every-increasing clarity—at least many of us hope for that.

 

 

About the Author: Patrick R. Kitchin is the founder of Kitchin Legal APC, a San Francisco, California employment law firm. He has represented tens of thousands of employees in both individual and class action cases involving violations of California and federal labor laws since founding his firm in 1999. According to retail experts and the media, his wage and hour class actions against Polo Ralph Lauren, Gap, Banana Republic, and Chico’s led to substantial changes in the retail industry’s labor practices in California. Patrick is a graduate of The University of Michigan Law School and is personally and professionally committed to the protection of workers’ rights everywhere.

 

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49,000 Striking Auto Workers Should Vote No on “Two-Tier.” Here’s Why.

September 18th, 2019 | Jane Slaughter

Image result for jane slaughter writerAuto workers on strike since midnight at General Motors are between a rock and a hard place—a hugely profitable company making outrageous demands for concessions and a union leadership that made no plan for winning a strike and has not even told members what they’re going out for. Picket signs say simply “UAW on Strike.”

Over the last decades many other unions have taught themselves how to do contract campaigns and strikes, with members on board from the get-go. But to look at the UAW’s confrontation with GM this week, you’d think none of that experience had ever happened.

Not a button was distributed in the plants. Members heard not a word from leaders about bargaining goals. There was no survey of the membership, no contract action teams, no bargaining bulletins to keep members in the loop. No “practice picketing,” no turn-down of overtime, no outreach to the public, no open bargaining.

As they have for decades, UAW officials played their cards close to the vest, with only management allowed a peek. Members knew only what they read in the media, explained materials handler Sean Crawford in Flint.

And yet 49,000 UAW members are angry enough with GM’s arrogance and downright oppression that they are ready to strike.

BIG CONCESSIONS DEMANDED

Local 598 in Flint broke the embargo when it reported that GM wants members to pay more for health insurance and is offering a less-than-inflation raise. Worse, it wants no movement on its odious tiered system that has flooded the plants with lower-paid outside contractors, a subsidiary called GM Subsystems, and temps—GM employees with no rights.

Beth Baryo, a former temp and now an “in progression” (second-tier) worker in Burton, Michigan, said that temps are allowed to miss only three days of work per year, unpaid, with advance approval, and can be forced to work seven-day weeks.

At the GM Tech Center where she works, outside Detroit, said Jessie Kelly, there are 1,300 workers employed by GM and 550 employed by Aramark, doing work that used to be GM workers’.

GM was bailed out by taxpayers to the tune of $50 billion in 2009. It made over $8 billion in profits last year, while paying no federal income taxes yet gifting CEO Mary Barra $22 million. For GM to demand concessions from its overworked employees now is a sign that it thinks the UAW is an easy foe.

After all, UAW President Gary Jones may be distracted. His house and that of former President Dennis Williams were both searched by the FBI August 28. Jones’ top lieutenant before he became president, Vance Pearson, was charged with using union funds for personal luxuries, and it’s widely believed that Jones and Williams will be next. Pearson was the sixth UAW official to be recently charged or convicted of graft.

Crawford said as the strike kicked off, “Yes, the UAW is corrupt. It’s disgusting beyond belief. But this is not about them. It’s about us. We can and will clean house. But we have a more immediate fight on our hands right now.”

Kelly too wanted to rally the troops against GM: “If somebody in the union abused their power, their future is already set out for them. Ours is not, ours is up in the air. All we can do is be there for each other because if we lose sight… GM will win because we were focusing on the wrong fight right now.”

Mitch Fox, now at Romulus Engine, his third GM plant after shutdowns and layoffs, is sickened by the corruption. He hopes leaders’ disrepute could be a motive for the strike: “With everything that’s going on, maybe they’ll try harder to gain our respect back; hopefully that’s the plan.”

But if past contracts are an indication, the pact Jones negotiates is sure to be weak.

YOU CAN VOTE NO

With top leaders discredited but refusing to step away, GM strikers have just one tool to use between their rock and their hard place: their right to vote no. They can do what Chrysler workers did in 2015: organize to turn down a contract that enshrined the two-tier system.

In 2015 rank-and-file Chrysler workers, with no union support, made leaflets and T-shirts, created Facebook groups to share their stories, and rallied outside informational meetings.

They did what no one thought possible in the UAW and voted Williams’s offer down 2-1, overcoming his defiant declaration that “ending two-tier is bullshit!” and winning a partial victory. The offer was improved, establishing a grow-in for second-tier workers to full pay (though still without pensions or the same health care plan).

Soon after the Chrysler vote, perhaps emboldened by the “no” vote at Chrysler, GM skilled trades workers rejected their pact as well, by almost 60 percent, winning some improvements. (Production workers voted yes by 58 percent.)

In 2015 what the automakers did with one hand they took away with another, though—a less-noticed provision also increased the use of temps.

“I’m voting no on any contract proposal that doesn’t give a pathway to equality for every GM/ UAW member,” said Crawford. “This is a sacred principle. It is the very meaning of the word union. This opportunity might not come again.”

This story first appeared at Labor Notes.

This article originally appeared on Inthesetimes.com on September 17, 2019.  Reprinted with permission.

Jane Slaughter is the author of Concessions and How To Beat Them and co-author, with Mike Parker, of Choosing Sides: Unions and the Team Concept and Working Smart: A Union Guide to Participation Programs and Reengineering. Her work has appeared in The Nation, The Progressive, In These Times, and Monthly Review, among others. Jane Slaughter  works for Labor Notes in Detroit.

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UAW workers stay on strike in 'battle for the middle class'

September 18th, 2019 | Laura Clawson

More than 45,000 workers remain on strike against General Motors after contract negotiations broke down between the company and the UAW. GM has cut off health insurance coverage for striking workers, while details of the two sides’ proposals remain scant. But the broad strokes are clear: As one worker told CNN, it’s a “battle for the middle class.”

GM has made a public relations push claiming it promised $7 billion in investment and 5,000 jobs, but the UAW’s lead negotiator said GM’s first serious offer came just hours before the deadline, too late to avert a strike. According to one UAW local, GM’s pay offer fell short of inflation, while workers’ healthcare costs would have increased. “Two percent is nothing,” a local union leader familiar with the offer told the Detroit Free Press. ”We have not gained back anything we gave up during the bankruptcy.”

That’s a critical point: GM workers made concessions in 2009 to help save the company from bankruptcy, but while GM’s profits were $8.1 billion last year, workers are still stuck with the two-tier system that pays new hires substantially lower wages, and many jobs have been turned over to temporary workers who are treated even worse. Meanwhile, workers point out, the 2015 contract between GM and the UAW prohibited plant closures, but GM went ahead and closed plants anyway, simply using a different terminology—instead of being closed or idled, the plans are “unallocated.” Seeing that, workers were ready. “We have been preparing for over a year because we knew that General Motors wasn’t going to budge from their position too much,” one 45-year GM employee told The Detroit News.

Other unions from the International Alliance of Theatrical Stage Employees to the Communications Workers of America and politicians like Ohio Sen. Sherrod Brown and New York Rep. Alexandria Ocasio-Cortez continue to come out in support of the striking workers.

This article was originally published at Daily Kos on September 17, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

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Trump labor board's drive to hurt temp and fast food workers hits another conflict-of-interest snag

September 18th, 2019 | Laura Clawson

Donald Trump’s National Labor Relations Board and its counsel have made it their mission to roll back every advance for workers from the Obama years. The joint-employer rule—which makes companies responsible, under certain circumstances, for workers employed through franchises and staffing agencies—is a major piece of that. In the rush to roll back the joint-employer rule, ProPublica’s Ian MacDougall reports, the NLRB hired a staffing agency with a major conflict of interest to help make it happen.

This is actually the second time the Trump-era NLRB has run into a conflict-of-interest problem on this exact issue, the first being in 2018 when a board member voted on a case despite his prior work for a law firm that had represented a company involved. So what did the NLRB do when taking another run at making it easier for major corporations to evade responsibility for abuses happening on their premises, involving workers whose conditions the corporations largely control? It … hired a legal staffing agency to provide temporary lawyers and paralegals to review public comments on overturning a rule that applies to staffing agencies. “In essence,” MacDougall writes, “the NLRB hired temps whose bosses have a stake in the outcome to review and potentially summarize the public comments.”

Not only that, but NLRB chair John Ring told Congress that the contractor hired wouldn’t do “any substantive, deliberative review of the comments but will be limited to sorting comments into categories in preparation for their substantive review,” even though internal documents show that the plan all along was for the temporary staff to do substantive review. House Committee on Education and Labor Chair Bobby Scott and Rep. Frederica Wilson, chair of its labor subcommittee, have some questions about this.

That’s the Trump administration, and the Republican Party more generally: so in bed with big business that it’s a conflict of interest every time they try to do something. But their determination to screw workers keeps driving them forward.

This article was originally published at Daily Kos on September 17, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

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Hey, Uber and Lyft: Gig Work Is Work. California Just Said So.

September 16th, 2019 | Michelle Chen

The rideshare industry seems to have been on an unstoppable tear, running roughshod over regulations, filling the streets with cars, and making astronomical sums of Wall Street capital. But California just tripped up Uber and Lyft’s business model with pioneering legislation to rein in the freewheeling “gig economy.”

The law, Assembly Bill 5 (AB5), passed overwhelmingly in the California Senate this week and is expected to be signed by Governor Gavin Newsom soon. It lays out a clear standard, the so-called “ABC test,” to ensure employers are properly categorizing workers as independent contractors, taking into account how much control the company exerts over their working conditions. Under the law, an independent contractor is defined as a worker with real autonomy: a person who (a) is not directly controlled by the company, (b) does work in the same trade or field independent of that company, and (c) is “independently established” as a proprietor of a separate business in the same sector. Under AB5, if you’re a rideshare driver whose entire livelihood depends on the rides your app funnels into our smartphone every hour, you’re likely an employee under California law.

The ABC test will codify the decision made in a landmark California Supreme Court case last year, Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The Court ruled in favor of delivery service workers who argued they deserved to be classified as employees because they were forced to wear the company’s uniform and display its logo despite being legally deemed “independent.” A major goal of the AB5 legislation is to stop employers’ widespread abusive misclassification of workers as independent contractors, in order to deny them regular employment rights and protections, often by insisting that their workers are merely app users.

Once classified as employees under state law, gig workers—not just platform-based workers, but also nail technicians, home-repair workers and dog walkers—would have access to California’s minimum wage, overtime pay, paid rest break, parental leave and workers’ compensation.

Yet Uber and Lyft both continue to resist AB5, and Uber has even indicated that it does not plan to follow the law once it goes into effect at the start of 2020. The company argues that neither the companies, nor many of their drivers, want to be bound by state labor laws and prefer to drive Uber as a casual side hustle.

But thousands of drivers are already organizing in California for more power over their working conditions. According to Brian Dolber, an organizer with the California-based Rideshare Drivers United, a fledgling union of 5,000 drivers, AB5 paves the way to formal unionization. But Rideshare Drivers United has not yet decided on what form the union will take. For now, he said, “We’re really putting drivers’ voices first.” Dolber added, “We want to continue organizing drivers and have drivers decide how they want their union to be structured.’

Critics of AB5 point to the potential loss of “flexibility” once gig workers are regarded as  employees. However, labor advocates dismiss the flexibility question as concern trolling by the bill’s corporate foes. Nayantara Mehta of the National Employment Law Project argues that current labor laws do not automatically exclude jobs with irregular hours, such as union nurses and construction workers, from being employees. Besides, AB5 deals with the degree of control a company exerts over a worker, not how the schedule is set. “Courts have found that just because a worker has a flexible schedule doesn’t mean she is somehow transformed into the operator of her own business—the true benchmark of independent contractor status,” writes Mehta.

Moreover, the fixation on flexibility elides the reality of many gig jobs. Workers’ schedules may be unstable, but not by choice: Often workers are glued to their phones so they can scramble for whatever rides pop up on their phone, or get paid for each manicure they do or each burger they deliver. Their pay could be so dismal that workers “flex” themselves into exhaustion.

“We drive and we drive and we drive,” said Nicole Moore of Rideshare Drivers United, who helped coordinate a rideshare strike in May. “We don’t have dinner with our kids, we don’t do all the things that we’re supposed to be doing in life. Yet we’re expected to pay the rent, we’re expected to put food on the table, and try to make a better life for our kids.”

This is not the first time Uber’s independent contractor system has been challenged. Various lawsuits in recent months have sought to establish workers’ formal employment rights, with mixed results. Uber managed to wriggle out of two lawsuits in March, which together settled for $20 million with 13,600 drivers—but did not address their status as non-employees. Meanwhile, growing efforts to organize rideshare drivers, particularly the New York Taxi Workers Alliance, have helped win increased labor protections at the state and local level, including a minimum wage for drivers in New York City.

Facing the prospect of their payrolls becoming saddled with thousands of brand new workers, gig-company executives are panicking. Uber and Lyft spent a total of about $750,000 lobbying the California legislature, alongside other professional and industry associations that sought exemptions from the law. In the end, Uber and Lyft were not granted the carve-out they were hoping for in the bill, but other trades—including real estate and insurance agents, doctors, engineers, architects and lawyers—were exempted.

Now Uber, Lyft and DoorDash are reportedly joining forces to fight AB5 using a time-honored California political strategy: investing $90 million on a ballot initiative asking voters to overturn the law and erect a different legal regime for gig workers, which might include some weaker benefits and pay standards.

So the gig economy’s leading lights are bent on fighting the law until the bitter end. But in this next round of legal battles, California’s new law, which is based on a Supreme Court ruling and reflects growing public disillusionment with the gig economy titans, might finally put the brakes on the platform economy’s regulatory rollbacks.

Moore is hopeful that the law can help narrow the gulf between Uber executives and drivers. “There’s no difference between my humanity and their humanity, sha says, adding: “The basic American agreement is that yes, be innovative, become a millionaire, build your own business, but the American compromise is that you will need to share some of those millions with the people who do the work in your company, so that they can also afford to take a Lyft.”

This article was originally published at In These Times on September 13, 2019. Reprinted with permission.

About the Author: Michelle Chen is a contributing writer at In These Times and The Nation, a contributing editor at Dissent and a co-producer of the “Belabored” podcast. She studies history at the CUNY Graduate Center. She tweets at @meeshellchen.

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California bill would increase local control over charter schools, this week in the war on workers

September 16th, 2019 | Laura Clawson

The financial drain and lack of local control of charter schools were a major issue in this year’s teachers strikes in California, and now the state legislature has passed a bill that might help. AB 1505 gives local school boards the ability to block new charter schools under some circumstances.

The bill, which still has to be signed by Gov. Gavin Newsom, would allow school boards to block the opening of new charter schools or expansion of an existing charter where it would duplicate already-existing programs. It would also allow school boards to consider the fiscal impact of opening a new charter school. This is a change: Previously, if a local school board said no, the state could come in and overrule it, forcing a new charter school in. Exactly that happened in San Francisco, even over decisions that were unanimous at the local level.

“In effect, we have certain charters in our district that we didn’t agree on and they did not meet our standard and yet we have to house them in our buildings,” San Francisco School Board Commissioner Alison Collins told SF Weekly. “Charters are circumventing local control. We have very little power over fixing things and holding them accountable.”

AB 1505 follows another important bill, Senate Bill 126, passed last spring, which requires charter schools to follow the same open meetings, open records, and conflict of interest laws as public schools—a no-brainer, you would think, but something charter schools have fought tooth and nail in multiple locations.

This article was originally published at Daily Kos on September 14, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

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UAW workers strike against GM as contract negotiations stall

September 16th, 2019 | Laura Clawson

UAW workers at General Motors are on strike for the first time since 2007. The 49,000 UAW workers at GM went out on strike at midnight Sunday after their contract expired with workers and management far apart in negotiations. Contracts are bargained every four years, with no work stoppages in 2011 or 2015 and the 2007 strike lasting just two days.

UAW leaders pointed back to 2009, when GM faced bankruptcy and workers made significant concessions to help the company bounce back. “We stood up for General Motors when they needed us most,” said Terry Dittes, a UAW vice president and top negotiator. “Now we are standing together in unity and solidarity for our Members, their families and the communities where we work and live.”

Now that GM is profitable again—pulling in $8.1 billion in profits last year—the UAW is pressing to improve wages, including narrowing the gap between longtime workers and those hired more recently at lower pay; reopening idled plants in places like Lordstown, Ohio; putting temporary workers on a path to permanent jobs; and maintaining affordable health care in an industry that takes a toll on workers’ bodies.

“If somebody prays, I ask that they pray for us. Or just send us good vibes,” Flint Chevrolet worker Dominique Birdsong told the Detroit Free Press. “I’m not scared, I’m hopeful. Because we’re determined. We will rally together for the middle class.”

This article was originally published at Daily Kos on September 16, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

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Amazon Worker: Why We’re Bringing the Climate Strike to Jeff Bezos

September 13th, 2019 | Rebecca Burns

Two months after Amazon warehouse workers across the globe staged a one-day strike, the great “disruptor” is facing another workplace disruption—this time by tech workers at its Seattle headquarters.

The group Amazon Employees for Climate Justice announced this week that it would join the September 20 Global Climate Strike led by 16-year-old activist Greta Thunberg. The employees are calling on Amazon to commit to zero emissions by 2030, cancel the company’s custom contracts that accelerate gas and oil extraction, and cease funding climate denying lobbyists and politicians.

The last year has seen rank-and-file tech workers walk out over sexual harassment at Google and sales to migrant detention centers by the online retailer Wayfair. Tech workers have also organized a wider movement called #TechWontBuildIt to oppose contracts with U.S. Immigration and Customs Enforcement and Customs and Border Protection.

But according to Amazon Employees for Climate Justice, next week’s walkout will be the first one by workers at the company’s corporate offices, as well as the first walkout in the tech industry over the climate crisis. More than 1,000 employees have currently pledged to participate via an online form.

The action grew out of a push by Amazon employees earlier this year to pass a shareholder resolution asking Jeff Bezos to create a comprehensive climate change plan. After a group of workers announced their intention to introduce this resolution, Amazon responded by announcing a “Shipment Zero” program to make 50% of its shipments carbon-neutral by 2030. More than 8,000 Amazon employees signed an open letter in April deriding this plan as inadequate and calling on the company to do more.

In May, shareholders voted down the climate resolution, but the group continued organizing as Amazon Employees for Climate Justice (AECJ).

In These Times spoke to Catherine Han, a software developer at Amazon, about the historic walkout and what it’s like to organize tech workers.

Have you been a part of workplace organizing or actions before?

No, this is the first time I’ve been involved in something like this.

How did you get involved in Amazon Employees for Climate Justice?

Environmental stewardship has always been something I was really passionate about. But my involvement had mostly been volunteer work—with different conservancy groups, trail work, things like that. Nothing super formal.

At work, a lot of my coworkers are very environmentally conscious. We would have a lot of conversations about climate change and what we could do, but it was always from a personal standpoint. Joining a group at work hadn’t really occurred to me.

I heard about this group after the shareholders letter announcement last year, and getting involved has been a really eye-opening experience for me. We are bringing a voice to this huge problem that had previously felt like a lot of individual concerns.

Why did the group decide to go on strike?

The call to action for the climate strike really came from the youth who were organizing it. They put out a call to action for a global movement, and we wanted to show solidarity and respond to that call, and also to push Amazon to show climate leadership.

Has it been difficult to get co-workers on board?

There have been a lot of very positive responses and a lot of easy conversations.

I think some of the more negative or hesitant reactions are often from people who are inexperienced with organized action. So it’s just discomfort with the unknown.

I think there’s broad agreement that being a tech worker at one of the most powerful tech companies in the world is an opportunity to raise the visibility of the climate crisis and show what we expect from our leadership.

If we can come together and have a company-wide commitment to get to zero emissions by 2030, that will empower workers to actually come up with the specifics we need to meet that.

What do you think of Amazon’s response to the climate crisis so far? Your group has pointed out some of the problems with the “Shipment Zero” plan Amazon announced earlier this year. While the company has pledged to make half of its shipments carbon-neutral by 2030, for example, this could still mean a net increase in emissions if shipments continue to grow.

For us, just given the science and the time we have left to make a substantial impact on the trajectory of the climate crisis, Shipment Zero isn’t anywhere near aggressive enough.

The important thing was that this came as a response to the shareholder letter. So one of the biggest takeaways for me was that organized action does work. As the result of the shareholder letter, we saw a positive response from Amazon. For me, that was really empowering to see, and it makes me optimistic about the walkout and the power of that.

Was that the first time you’ve seen the success of collective action?

I really saw the power of organized action a few years ago during the women’s march. I went to the Seattle march and it was one of the first organized actions that I had participated in. Seeing power in numbers was really eye-opening for me.

My experience with the climate change movement within Amazon has been similar. For a lot of people, this is their first time being involved in an organization like this. I think that finding a voice together has been a very transformational experience for a lot of people who have been involved.

Earlier this year, workers across Europe, as well as Minnesota and Chicago, staged coordinated walkouts and other actions on Prime Day. Working conditions in Amazon warehouses are often very bad, and there are a lot of environmental justice issues associated with them—warehouses are more likely to be located in low-income neighborhoods and communities of color, and cause air pollution, noise, traffic safety and other issues in the surrounding area.

Do you see the climate organizing you’re doing as related to organizing by warehouse workers?

Amazon Employees for Climate Justice was definitely in support of the strikes. We’re focused on climate justice, and part of the climate crisis is that there is a disproportionate impact on impoverished communities.

We released a solidarity statement that articulates this:

Lending our support to our coworkers in Minnesota is a natural part of our climate justice priorities. We cannot create a sustainable, long-term approach to addressing the climate crisis without addressing structural racial and economic inequities that are part of our system of extraction — of energy, material, and human labor — that have caused the crisis.

This article was originally published at In These Times on September 12, 2019. Reprinted with permission. 

About the Author: Rebecca Burns is an award-winning investigative reporter whose work has appeared in The Baffler, the Chicago Reader, The Intercept and other outlets. She is a contributing editor at In These Times. Follow her on Twitter @rejburns.

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Working People Remember Those Lost Because of 9/11

September 12th, 2019 | Kenneth Quinnell
9/11

The terrorist attacks on Sept. 11, 2001, 18 years ago today, affected all Americans, but they had a particular impact upon first responders. Thousands of lives were lost that day and more died in the aftermath because of illnesses related to the attacks. The members and leaders of the various unions affected by the 9/11 attacks are memorializing the anniversary in various ways. Here is what they are saying:

 

 

The New York City Police Department has a memorial website in honor of the law enforcement officers who lost their lives in connection with 9/11.

Also watch these videos, which provide more context and pay further tribute.

This blog was originally published by the AFL-CIO on September 11, 2019. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars.

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Uber claims California gig economy law won't apply because drivers aren't central to Uber's business

September 12th, 2019 | Laura Clawson

The California Senate passed a bill reining in gig economy abuses on Tuesday night, and by Wednesday afternoon, before Gov. Gavin Newsom had a chance to sign it, Uber had already come out to say that it was confident the new law wouldn’t apply to Uber drivers, and also Uber had already allocated tens of millions of dollars for a ballot initiative overturning it.

Uber chief legal officer Tony West insisted that the company would pass the test for counting its drivers as independent contractors rather than employees because “drivers’ work is outside the usual course of Uber’s business, which is serving as a technology platform for several different types of digital marketplaces.” As Jamison Foser tweeted in response to this insult to our collective intelligence, “Just last week as my wife and I were leaving a bar, I turned to her and asked ‘are you getting a technology platform for several different types of digital marketplaces or should I?’”

Uber’s position boils down to “we will pour all our resources into fighting this and we bet we can buy a win by some means or other.” But the company is on the record that its drivers are a key part of its business model. Like, really on the record about that. And AB5 won’t leave the court battles to drivers—San Francisco’s city attorney has said that his office may take action to enforce the law.

For its part, Lyft sent drivers a threatening letter saying that drivers “may soon be required to drive specific shifts, stick to specific areas, and drive for only a single platform (such as Lyft, Uber, Doordash, or others).” While Lyft and other app-based services might decide that their best move was to limit the number of drivers at one time and the number of hours they could work, that’s not required by the law, and Assemblywoman Lorena Gonzalez, the author of AB5, questioned the legality of the threat that people might be required to “drive for only a single platform.”

In short, AB5 is a big step forward—but companies that got rich and powerful by exploiting workers and sidestepping labor laws are going to use their money and power to continue exploiting workers and sidestepping labor laws for as long as they can get away with it.

This article was originally published at Daily Kos on September 12, 2019. Reprinted with permission.

About the Author: Laura Clawson is a Daily Kos contributor editor since December 2006. Full-time staff since 2011, currently assistant managing editor.. Laura at Daily Kos

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