Labor advocates and allies in Albany are feuding over a draft bill that aims to grant some union rights to precarious workers who toil at irregular hours and less regular wages for app-based “gig” employers like Uber and Lyft. This family feud is all the more frustrating because there’s a perfectly reasonable New Deal-era state law still on the books for when workers slip through the cracks of a patchwork of worker protections and fissured workplaces.
The current bill purports to do the same by creating a system of “sectoral bargaining” for gig workers, while severely restricting the number issues they can bargain over, outlawing their ability to strike and robbing them of their unemployment insurance by replacing their statutory protections as workers with an opportunity to collude as a guild of “entrepreneurs.”
Everywhere from the House-passed PRO Act, which would amend the National Labor Relations Act (NLRA) to make the process for forming a union fairer and available to misclassified freelancers, to the California legislature’s attempts to plug the holes in the current NLRA by properly classifying gig workers as statutory employees with rights, the app bosses try to codify a third class of worker lacking both the agency to set their own price and hours of labor like a traditional independent contractor and the ability to form democratic unions of their own choosing to bargain — and, potentially, strike — over the working conditions that the app bosses dictate.
What’s crazy is that, unlike the newly passed California law that Uber circumvented through a massively expensive — and deceptive — ballot initiative, New York has had, this whole time, a functioning state agency that will protect the right to organize and certify a union for any private-sector workers that federal labor law leaves behind. Because the Supreme Court had a track record of overturning any protective legislation for workers when New York Sen. Robert Wagner drafted the NLRA, he decided to justify the law’s constitutionality in Congress’ power to regulate interstate commerce. In 1935, that was defined far more narrowly than today.
For example, a hotel standing entirely within a state’s borders did not count. Therefore, New York passed a so-called “baby Wagner Act” that created a similar regulatory framework for private-sector workers left out of the New Deal. Most of the first 20,000 workers that the Hotel Trades Council won the right to bargain on behalf of in the 1930s and 40s were organized through elections — and card check certifications — conducted by the NY State Labor Relations Board. Stuck with the bizarre constitutional framework of arguing that human rights are rooted in protest activity’s impact on the economy, the civil rights movement expanded NLRB jurisdiction to retail, hospitality and service industries. By the mid-1960s, unions stopped turning to the state Labor Relations Board and in 2010 its responsibilities were assumed by the Public Employment Relations Board. Most people that know of PERB think of it as the state agency that punishes public sector teachers and subway workers for going on strike, but it actually can be an engine for private-sector worker organizing.
Legislative progressives, or a governor willing to exercise some leadership, could settle the gig worker controversy by directing PERB to aggressively protect and encourage the right to organize for all private-sector workers under their jurisdiction. And as the Biden administration wrests control of the NLRB from Trump’s anti-union appointees, we could have two labor boards competing for who offers workers a better deal.
This was the dynamic when I directed the American Federation of Teachers’ charter school organizing division during the Obama years. In blue states like New York and Illinois, we got public-sector labor laws that gave the workers a right to organize through card check. When the NLRB staked a claim to the jurisdiction, the federal agency touted its more robust right to strike. It was a compelling argument.
We live in a time when billion-dollar companies will spend millions of dollars and thousands of hours to resist their workers’ attempts to win a couple more bucks an hour. As a campaign director, I struggled with the impulse to strike a deal when a powerful boss signaled a desire to negotiate. And Uber like so many of the gig economy digital platforms — hemorrhaging investors’ dollars, struggling to maintain a workforce with pitiful wages, breaking all kinds of laws — are under enormous pressure to make peace with anyone who will take a settlement. With deep respect and solidarity to the organizers and legislators who are working with Uber on this deeply flawed bill, a better deal is possible if you start from the position that the actually existing labor laws should apply to these digital scofflaws.