Outten & Golden: Empowering Employees in the Workplace

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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California Senate passes landmark bill cracking down on gig economy abuses

September 11th, 2019 | Laura Clawson

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

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People of color surge into majority of new hires in U.S. for the first time

September 11th, 2019 | Laura Clawson

The U.S. workforce has passed a milestone: New hires of prime working-age people are now majority people of color. And women workers are a key to that trend. (Donald Trump just shuddered twice and he doesn’t know why.)

“Minority women began to pour into the labor market in 2015, and they have begun to reshape the demographics of the U.S. workforce, especially because many white baby boomers have been retiring,” The Washington Post reports. “There are 5.2 million more people in the United States with jobs than at the end of 2016, and 4.5 million of them are minorities, according to The Post’s analysis of Labor Department data.”

The Post suggests several reasons for the entry of women of color into the workforce: “a tight labor market that is forcing employers to look beyond their normal pool of candidates,” awfully polite phrasing for “some employers are super racist and sexist”;  changing cultural norms for some groups making it more acceptable or expected for women to work outside the home; Trump’s deportations that have left some women without their husbands’ incomes; and of course the growing need for two incomes to support families in a U.S. economy characterized by wage stagnation and economic insecurity.

The rise of women of color as new hires is one more advance that may be partially undone if the economy slows, with employers going back to their comfort zone. But in the long term, this is the future, no matter how desperately Trump tries to claw it back.

This article was originally published at Daily Kos on September 10, 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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Classifying Workers as Independent Contractors in California is About to Become Harder

September 10th, 2019 | Patrick R. Kitchin

The California Legislature is poised to pass Assembly Bill 5, an act that will reclassify up to two million California independent contractors as employees.  All indications are that the bill will pass in the coming days.  In an op-ed piece published in the Sacramento Bee on Labor Day 2019, California Governor Gavin Newsom expressed his strong support for passage of the bill:

“Reversing the trend of misclassification is a necessary and important step to improve the lives of working people. That’s why, this Labor Day, I am proud to be supporting Assembly Bill 5, which extends critical labor protections to more workers by curbing misclassification.”

If the bill passes final votes in the Democratic-controlled Senate, Governor Newsom likely will pass the bill into law with his signature before the Legislators adjourns on September 13th.  While AB-5 faces fierce opposition from Lyft, Uber, DoorDash and other economic powerhouses, passage of AB-5, with or without significant modifications, seems inevitable.  If passed into law, AB-5 will codify the California Supreme Court’s April 2018 Dynamex Operations West, Inc. v. Superior Court decision and fix certain problems created by the Court’s decision in Dynamex.

What Did the Dynamex Case Establish?

In the context of the rapidly expanding gig economy, the 2018 Dynamex ruling was one of the most consequential wage-related decisions in California in decades.  Although currently the new definition of “to employ” applies only to claims made under the California Industrial Welfare Commission Wage Orders, those Wage Orders reach deep into the workplace.  Wage Orders govern the classification of employees as exempt or nonexempt from overtime, the operation of alternative workweeks, minimum and overtime wage obligations, meal and rest periods, recordkeeping, uniforms and equipment, and even when employers are required to provide seats to workers.

What is the “ABC Test”?

In Dynamex the Supreme Court held that individuals engaged to perform work for others are employees unless the hiring party can demonstrate “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”  This is the crux of the ABC Test.

Dynamex’s Scope is Both Broad and Limited

The Dynamex decision does not address the classification of workers with respect to other kinds of employment claims, including discrimination, harassment and expense-reimbursement claims.  As it currently stands in California, then, we have two competing tests to determine whether someone is an employee or independent contractor: (1) the multi-factor, economic realities test described in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, and (2) the ABC Test for claims under the Wage Orders.

Consequently, if an individual files a lawsuit claiming unpaid minimum wages (a Wage Order claim) and unlawful discrimination (outside the Wage Orders), a jury might be asked to apply two distinct employee tests to the different claims made by the same person.  A jury might find that the individual was an employee entitled to minimum wages under the ABC Test but that the individual was not an employee entitled to protections against discrimination under the definition of “to employ” set out in Borello.  As currently drafted, AB-5 does not clearly reconcile those differences.  AB-5 would apply only to definition of “to employ” in the Labor Code, Unemployment Insurance Code and the Wage Orders.

These differences in the legal definition of the term “to employee” should be addressed by the Legislature.  But in the interim, California courts will be called upon to reconcile the different definitions of “to employ” that currently exist in the cases that come before them.  Interesting appellate decisions are sure to address these kinds of issues in the coming months.

How Will Passage of AB-5 Effect Workers and Workplaces in California?

While AB-5 current carves out significant exceptions for certain professionals, including doctors, securities broker-dealers, lawyers, architects, accountants, cosmetologists and other licensed professionals, its impact will be felt broadly across California. Passage of AB-5 will grant employment rights and protections to workers who are currently not covered by labor laws, including workers compensation insurance, unemployment benefits and sick leave.  The importance of these benefits cannot be overstated.   California’s rich labor history is filled with such moments as these, from the passage of the first minimum wage law in 1916 to the first day of 2016 when the California Equal Pay Act went into effect.  Providing greater protections to more people in the workplace in California has always been central to our identity as Californians.

However, Dynamex and AB-5, if passed into law in the coming week, will also force employers and workers to reassess their working relationships.  AB-5 would sacrifice the freedoms we associate with working as independent contractors for protections guaranteed to workers engaged as employees.  Unless the Legislature carves out an exception for Uber and Lyft drivers, ride sharing and delivery companies like DoorDash, will be forced to change their fundamental people engagement models.

As expected, employer and industry groups are decrying AB-5 as a doomsday bill that will drive business away from California and severely damage the economy.  The largest players in the gig economy have billions riding on the outcome of the legislative process.  These groups have simultaneously lobbied for exemptions and threatened to void the outcome if AB-5 is signed into law.  If AB-5 is passed, which Uber and Lyft appear now to accept as likely, they have promised to challenge the law through a 2020 voter initiative. Jointly they have earmarked $60 million to a fight to overturn the law.  Given the issues permeating discussions within the Democratic Party in the run up to the 2020 presidential election, however, a California voter initiative meant to take away employment protections granted by AB-5 would have a steep uphill fight.

The California economy is the fifth biggest in the world, just ahead of the United Kingdom, and it has weathered serious challenges over the years as worker protections have expanded and costs to businesses have increased.  California will survive and thrive, and will likely establish precedent for similar movements in other blue states.

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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Google’s Chance To Do Good For Gig Workers

September 10th, 2019 | Tom Conway

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).

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