Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘gig economy’

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

Wednesday, September 18th, 2019

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.

 

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

Wednesday, September 18th, 2019

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

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

Monday, September 16th, 2019

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.

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

Thursday, September 12th, 2019

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

California Senate passes landmark bill cracking down on gig economy abuses

Wednesday, September 11th, 2019

This is huge. The California state Senate passed Assembly Bill 5, which will rein in gig economy abuses, in a 29 to 11 vote. App-based companies like Uber, Lyft, and DoorDash tried to negotiate an exemption for themselves, but legislators held firm and the bill—which needs to be re-passed by the state Assembly and then signed by Gov. Gavin Newsom—includes those key players in the gig economy.

AB5 puts into law a 2018 California Supreme Court decision imposing stricter tests on whether a worker can be counted as an independent contractor. Under that decision and under AB5, companies can’t call workers independent contractors if the work they do is central to the company’s mission or if the company substantially directs their work. That applies not just Uber drivers and food delivery workers but to port truck drivers, janitors, manicurists, strippers, and some tech workers.

Once it becomes law, AB5 is expected to affect more than a million California workers, and could set a model for other states. AB5 “finally asserts one set of standards for determining employee status for all workers, putting an end to the chaos of poverty and despair gig bosses created in their pursuit of profits at any cost,” said New York Taxi Workers Alliance Executive Director Bhairavi Desai. “Now all workers—from nail salon workers, to delivery workers, to app drivers—will have employee protections if their work is part of the core services of the company that employs them.” She went on to call for “the same clarity for employee status here in New York State.”

”Today the so-called gig companies present themselves as the innovative future of tomorrow, a future where companies don’t pay Social Security or Medicare,” said state Sen. Maria Elena Durazo, a longtime labor leader turned elected official. “Let’s be clear: there is nothing innovative about underpaying someone for their labor.”

”Misclassification is an attempt to weaken the power of workers, including the thousands of truck drivers in California who deserve a living wage and full rights as employees. With this vote, the California Senate has taken a strong stand with workers who should earn a living wage and have the protections to which they are entitled,” Teamsters president Jim Hoffa said in a statement.

The California Assembly and Newsom are expected to put AB5 into law without drama. But Uber, Lyft, and DoorDash are vowing to add drama by pouring nearly $100 million into a ballot initiative trying to get themselves exempted from the law.

This article was originally published at Daily Kos on September 11, 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

Google’s Chance To Do Good For Gig Workers

Tuesday, September 10th, 2019

Google is famous for workplaces called “campuses” where employees get enormous paychecks and enjoy all the perks of fancy private college campuses, including pingpong tables and other entertainment. ­

But other workers who produce for Google across the country are not so pampered. They are Google’s underclass. In this two-tier system, these workers get less money, less respect, and fewer perks.

It’s no wonder that these workers, like those at HCL, a contracting company that helps staff Google’s offices, have turned to labor unions to help fight for better conditions. Employees of HCL in Pittsburgh filed a petition with the National Labor Relations Board late last month requesting a vote on representation by the Pittsburgh Association of Technical Professionals, a project of the United Steelworkers (USW) union, the union I lead.

And a union will help these workers. But Google also has a golden opportunity to change this system, to go to bat for contract workers. It wields clout over its contractors and should encourage them to do right by their employees, like those at HCL.

Because sure, pingpong tables are nice, but what these workers want is what all workers deserve: fair pay, decent benefits, a voice in their workplace and the job security that comes from a bargained labor contract.

Google should encourage HCL to recognize the union and give its employees a fair contract. By doing this, Google would set a significant example for the tech industry.

Contract and gig workers, like those at HCL, are a big part of the U.S. economy — a 2018 report from the U.S. Bureau of Labor Statistics estimated that 15.5 million Americans worked as independent contractors, on-call employees, freelancers or temporary employees. That’s up from 12.1 million in 1995.

Besides lower pay, contract workers often get fewer benefits than a company’s regular employees. Or they get no benefits­.

Now, they’re turning to labor unions — like so many workers in other fields have done — to improve their lot.

The Trump administration should be sticking up for them also. But it isn’t. It’s almost as if the National Labor Relations Board is stuck in the 1950s, unable to catch up with a new economy in which workers need protection even though their working arrangements have changed.

Just look at the board’s ruling on the drivers for SuperShuttle, the airport transportation company. The board ruled in January that the drivers are contractors, not employees, so they’re unable to organize.

NLRB officials have adopted a similar position with other gig workers, including Uber drivers.

The board dealt gig workers another big blow late last month. It ruled that Velox Express Inc., a medical courier service in Arkansas and Tennessee, didn’t violate the National Labor Relations Act by misclassifying employees as contractors.

A decision like that will embolden other employers to pass employees off as contractors. If employees challenge a misclassification and win, the company faces no penalty. That’s no deterrent for abusing workers.

The NLRB must get with the times, just as labor unions have. In addition to its core industries, the USW now represents pharmacists, physicians, nurses, college professors, lawyers and workers in many other fields. And labor unions of all sorts are stepping up to help gig workers, many of whom are millennials who understand the benefits of union representation.

Lots of money is at stake in worker classification battles. But there’s something more — the compact between worker and employer — that’s also on the line.

Employees make a company what it is. Their dedication turns a profit and keeps customers happy. Their innovation enables a company to get ahead. In return, a company has an obligation to provide its workers — all of its workers — with decent wages and benefits.

Uber and Lyft don’t get it yet. They’re prime examples of gig economy employers getting rich on the backs of “independent” contractors, some of whom don’t make minimum wage after costs for gas, insurance and car repairs are considered.

In California, lawmakers are considering a bill that could make it more difficult for companies to classify gig workers as contractors. Uber, Lyft and DoorDash have vowed to spend up to $90 million on a ballot initiative that would help them to classify workers on their terms.

That’s a lot of money to spend to hold working people down.

Across the country, Google has a veritable army of contract workers. In fact, it has more contract workers than employees. HCL is one of many companies that provide Google with “TVCs,” shorthand for “temps, vendors and contractors.”

Bloomberg and other news outlets have reported on this “shadow work force.” The contract workers’ badges, red instead of a Google employee’s white, are only one sign of their second-class status. Contract workers often are paid significantly less than direct workers and are denied some of the perks that Google employees get.

In April, Google announced that it would require contract workers to be given health care, sick leave and parental leave by 2022 and a $15-an-hour minimum wage by 2020. But contractors can do better.

Nationwide, Google’s contract workers perform a variety of functions ranging from code-writing to human resources work to team management. When companies pay these workers less than their own employees or save money on benefits, they shore up their already-robust bottom line, keep investors happy and provide more money for stock buybacks that enrich CEOs.

If the federal government won’t protect workers, states should step in when they can, as California is doing.

To be considered contractors under California’s bill, workers would have to be free of a company’s “control and direction,” perform duties outside the company’s regular scope of work and have other employment.

Assemblywoman Lorena Gonzalez, a Democrat from San Diego who introduced the legislation, said the NLRB’s position on Uber drivers “is just one more instance in President Trump’s growing list of attacks against workers.”

State lawmakers and organized labor are important allies for contract and gig workers. But Google can make a big difference also. Google has a chance to step up, demand fairness for contract workers and become a role model for the entire tech industry, an industry that prides itself on innovation.

This blog was originally published by the Our Future on September 9, 2019. Reprinted with permission. 

About the Author: Tom Conway is international president of the United Steelworkers (USW).

California moves one step closer to reining in the gig economy and expanding worker protections

Wednesday, September 4th, 2019

A million California workers are denied key workplace protections—including the minimum wage—because their employers falsely label them as independent contractors. But that came one step closer to changing on Friday when the state Senate’s appropriations committee passed Assembly Bill 5, a plan to crack down on that misclassification of workers.

AB5 is based on a 2018 decision by the California Supreme Court that imposed a stricter test for whether a worker could be considered an independent contractor. Companies can’t call workers independent contractors if the work they do is central to the company’s mission or if the company substantially directs their work, the court ruled. The legislation will make enforcement significantly easier, but it also includes a lot of exemptions for professions such as doctors, lawyers, architects, engineers, accountants, insurance agents, hairstylists, and more.

The trucking industry and app-based companies like Uber and Lyft have been screaming for exemptions but so far, their efforts are in vain. “Trucking has some of the worst violators,” said Assemblywoman Lorena Gonzalez, the bill’s author. “We are not going to strip out employee protections.” Uber, Lyft, and others are threatening to pour $90 million into a campaign for a ballot measure exempting them, which could become a massive fight in 2020.

Other workers who will be covered by AB5 include janitors, construction workers, manicurists, strippers, and some in the tech industry. Being an employee means protections including the minimum wage, overtime, workers comp, sick leave, family leave, and more, in addition to employer payments for Social Security and Medicare. Companies also don’t pay payroll taxes on independent contractors, shorting the state of California by an estimated $7 billion a year on misclassified workers.

The bill, which passed the state Assembly, heads to the full Senate for a vote that’s expected to succeed. According to a spokesman for Gov. Gavin Newsom, “The governor is supportive of addressing the misclassification of workers, which for decades has been a driver of income inequality.”

This blog was originally published at Daily Kos on September 3, 2019. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Stephanie Land's 'Maid' shows the limits of hard work in struggle to survive the U.S. economy

Tuesday, September 3rd, 2019

How could Stephanie Land’s book Maid not make a splash, with the opening sentence, “My daughter learned to walk in a homeless shelter,” and a follow-through that lives up to the impact of that sentence? A splash it has made, debuting at number three on The New York Times bestseller list over the winter, and now being turned into a TV show and making former President Barack Obama’s summer reading list. Land’s book tells the story of years spent scraping by as a single mother to her daughter Mia, patching together government aid and work cleaning houses while coping with inadequate housing, inadequate child care, an abusive ex, and the constant stress and pain involved in all those things. But it’s also a challenge to its readers, pushing us to reckon with the comprehensive stresses of poverty, the importance of government assistance, and—for those who can afford to have someone else clean their homes—how to do the ethical thing (more on that coming soon, at least for people living inWashington, D.C., Baltimore, and Boston).

Maid is a beautiful book and a sad book and even, at times, a joyful book—a story of a mother’s love for her daughter—but most of all it’s an important book about the U.S. economy and what it does to people. Maid is filled with keen observations of the houses Land cleaned—she first broke through as a writer with a Vox piece about what she saw in those homes—and devastating details about what it takes, as a low-paid service worker, to make comparatively wealthy customers happy: ignoring the copious amounts of porn in one house, or the pills in another, dealing with the dog poop on a beige carpet. Getting every last hair out of a tub coated in the owner’s bath oils.

Land also weaves into that narrative the insecurity, indignity, and fear involved in poverty—the doctors who suggest she’s a bad mother because poverty is making her daughter sick; the moments when a client does treat her as a human being, a peer, moments that shine through because they’re so unusual; the vulnerability to heat and cold and mold in a shoddy apartment; the need to keep an old car running; the physical pain and hunger. “I walked along a deep precipice of hopelessness,” she writes. “Each morning brought a constant, lip-chewing stress over making it to work and getting home without my car breaking down. My back ached constantly. I dampened my hunger pangs with coffee. It felt impossible to climb out of this hole.”

Part of the reason this works so powerfully within the framework of the stories the United States tells about itself, of course, is because Land is so middle-class in her tastes and aspirations—because the next sentence in the above passage is, “My only real hope was school: an education would be my token to freedom.” Because she wants her daughter to eat fresh berries and drink organic milk, because she see books in a man’s apartment as an attraction, because she is someone who can write her way out of poverty. She is tailor-made to appeal even to people who don’t support a strong safety net or who don’t see low-wage workers as worthy of respect. But Maid is an important book about U.S. politics precisely because Land is constantly aware of how exactly that works in her life—how the people around her don’t see her as someone who is, who could be, desperately poor. How her friends and employers don’t imagine her to be on government aid as they sneer at and insult people on government aid, people that she keenly points out are always seen as other in a way she is not.

Land is crystal clear that she survived with the help of government assistance: Chapter 5 of the book, in fact, is titled, “Seven different kinds of government assistance.” She shows powerfully how difficult that assistance is to access and how inadequate to her needs it is. And she is equally clear about who doesn’t get the benefit of the doubt while she, as a white woman working her way through college, did, writing about a cleaning client—someone from whom she needed employment—railing, “Last time I went to the big store, I got in line behind a Mexican family … They used food stamps to pay for their food. And those kids were dressed to the nines!”

In that moment, Land writes, she kept cleaning the woman’s house, biting her tongue and thinking “of how much Mia loved her fancy dresses and shiny shoes, which I purchased with credit from the consignment store. Maybe Donna didn’t realize I was on food stamps, too.” She goes on:

I wanted to tell Donna that it wasn’t her business what that family bought or ate or wore and that I hated when cashiers at the supermarket said “On your EBT?” loud enough for people in line behind me to hear. I wanted to tell her that undocumented people couldn’t receive food benefits or tax refunds, even though they paid taxes. They couldn’t receive any benefits at all. Those were available only for people who were born here or who had obtained the documents to stay. So those children, whose parents had risked so much to give them a good life, were citizens who deserved every bit as much government help as my daughter did. I knew this because I’d sat beside them in countless government offices. I overheard their conversations with caseworkers sitting behind glass, failing to communicate through a language barrier. But these attitudes that immigrants came here to steal our resources were spreading, and the stigmas resembled those facing anyone who relied on government assistance to survive.

That’s a passage that speaks especially loudly in the era of Donald Trump, of course, while reminding readers that Trump didn’t create this kind of bigotry.

In some of Maid’s most poignant moments, Land permits herself to dream, briefly, of luxuries not available to her. There are the tickets to a Mariners game, offered to her by a client, that are “a dream I’d had since I’d been Mia’s age,” but that she can’t use herself because she can’t afford the gas money. Or the time she “noticed the hot tub with an empty bottle of champagne sitting in the corner” at a home she’s cleaning and “My body ached, yearned for even a chance, just one opportunity, to drink champagne in a hot tub.” I dearly hope that the book’s success has let her live out those, and other, daydreams. But you shouldn’t have to write a bestseller to get a single afternoon or evening of fun and relaxation, and it would be difficult for me, at least, to enjoy a kitchen that’s clean because someone else was doing painful labor and still living in poverty.

This blog was originally published at Daily Kos on September 2, 2019. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Union Veterans Fight for Texas Catering Workers

Friday, August 23rd, 2019

On Tuesday morning, as union veteran Sam Tijerina drove from Pasadena, Texas, to Dallas, he had a lot on his mind. His thoughts wandered as he passed mile markers and towns—he thought about his young family at home and the life that having a union job has provided them. “A union card has allowed me to live with dignity,” he said.

Tijerina was traveling to one of the largest acts of civil disobedience that the Texas labor movement has waged in years. LSG Sky Chef workers, who are contracted by American Airlines, planned a rally with UNITE HERE to advocate for raising wages. “It was important to be part of the civil disobedience because my fellow veterans are affected by poor wages,” Tijerina said. “There are an estimated 1.3 million veteran workers who earn less than $15 an hour. It is disheartening to know my brothers and sisters have to work multiple jobs to make ends meet. One job should be enough.”

More than 600 supporters showed up at the protest, including catering workers, union members from other airports and local supporters like Tijerina. He was one of 58 people who were arrested while blocking traffic during the protest.

Tijerina is an Elevator Constructor (IUEC) from Local 31 and a Marine veteran who served in Iraq during Operation Iraqi Freedom II. The Marines taught him about selfless service and how to lead by example. “I know that it’s not just about me,” Tijerina said. “It’s about fighting for everyone, no matter what their situation is.” This is the same sentiment echoed by Union Veterans Council Executive Director Will Attig at a recent speech to the Texas AFL-CIO convention, shortly before announcing the creation of a Texas chapter of the Union Veterans Council. “Leaders lead from the front and motivate others to take action,” Attig added. “Texas union vets are ready to take action to support the working people of this state.”

Earlier this year, Attig was among a group of union leaders and activists who were arrested at the U.S. Capitol during the government shutdown, when a quarter of 1 million veteran workers faced no pay and job instability. Attig hopes this action will motivate fellow union veterans to get more involved. Attig wants Union Veterans Council members and the labor movement to know that union veterans are a force to be reckoned with.

The Union Veterans Council is working to unify our veterans by giving them the tools and platform to make their voices heard on a local and national level, along with inspiring union veterans to take an action-based role in the labor movement. Tijerina is just one of a growing movement of union veterans across the country who are using their voices to fight and advocate for fellow workers and the issues that matter to their community.

This article was originally published at AFL-CIO on August 22, 2019. Reprinted with permission.

About the Author: The Union Veterans Council brings working-class veterans together to speak out on the issues that impact us most, especially the need for good jobs and a strong, fully funded and staffed VA.

These Hotel Workers Say They Shouldn’t Have to Work Multiple Jobs to Make Ends Meet

Thursday, August 8th, 2019

Hotel workers union UNITE HERE isn’t resting on its laurels after winning a contract fight with the giant Marriott chain late last year. The union is pursuing new organizing efforts, including a push in Baltimore for a first contract covering some 145 newly unionized members there, according to Vikas Mohite, a full-time Marriott employee and active rank-and-file union member.
 This article was originally published at In These Times on August 8, 2019.  Reprinted with permission.
About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
Your Rights Job Survival The Issues Features Resources About This Blog