What we owe gig workers
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.
[This article originally appeared in the New York Daily News.]
Usher in a new day for labor: The courts can’t be counted on to protect workers anymore; Congress needs to pass new laws
As the Supreme Court prepares to decide whether the 1964 Civil Rights Act protects gay and transgender people from workplace discrimination, it seems, at least to me, unlikely that a bench dominated by five very conservative men will protect gay employees.
This should be a wake-up call: We cannot count on the courts to protect our rights in the workplace. We need a Congress that will actually pass laws, and high on the list of legislative priorities should be a “just cause” law that would protect every employee from unfair terminations.
Common as a legal standard of employment across much of the industrialized world, and here routinely negotiated into union contracts, “just cause” is the principle that no employee can be fired without a legitimate, serious, work-performance reason.
Such a legal standard would empower workers to speak out about pay disparities, to combat sexual harassment and to complain about unsafe working conditions. It would give workers the power to say no to requests that fall outside the bounds of their duties or propriety.
In short, it would finally correct what has become a deeply imbalanced employer-employee relationship.
Lawyers for the Trump administration insisted at Tuesday’s high court arguments that it’s the responsibility of Congress, not the courts, to update the law to protect LGBT workers. They may be wicked but they are not wrong. The failure of Congress to do much in the way of legislating employee protections in the last quarter-century has created a vacuum that the courts have filled with a political agenda that is hostile to government regulations and worker rights.
Take 2018’s Epic Systems decision, in which the high court ruled that employers can force employees to submit accusations of unfair or discriminatory treatment to private arbitration, foreclosing class action lawsuits. To accomplish this, they radically reinterpreted the 1925 Arbitration Act.
A Congress that actually passes laws could simply overturn EPIC Systems, and make whatever narrow new standard the court defines in the current LGBT discrimination case moot. Of course, that will require a new president and a Democratic majority in the Senate that removes the filibuster as a convenient excuse for inaction. Progressive activists who will work their tails off for a Democratic majority in 2020 should demand no less than a Congress that takes swift action to give us all better job protections.
It’s encouraging that almost all of the Democratic candidates for president have produced detailed platforms for worker power, union representation and employee protections. Sen. Elizabeth Warren, of course, has a plan to protect gay and transgender workers. She also has a plan to protect workers from discrimination on the basis of pregnancy. And another to protect disabled workers. And another to protect employees who wear dreadlocks.
The fact that she proposes to amend the law in at least nine places to protect a ridiculously long list of categories of workers who continue to face discrimination belie the need for a universal right like just cause.
No worker is going to be told that the reason they are being fired is because they are gay. An employer will always invent a performance-based justification. Even if gay workers were protected by the Civil Rights Act, that law — like all current protections against unfair terminations — puts the onus on the employee to prove the ulterior motive.
A just-cause law would flip that burden onto the employer, where it belongs.
Mayor de Blasio was the first of three presidential candidates in the crowded field to have campaigned on a just-cause law; of them, only Bernie Sanders now remains. Still, it is electrifying to see one of the frontrunners for the nomination supporting a bold reform to end the everyday tyranny of the non-union workplace and to bring us in line with the kind of rights that hundreds of millions of workers the world over take for granted.
This is the future of Democratic labor policy. At least, it ought to be.
[This op-ed originally appeared in the New York Daily News.]
Rats have speech rights, too: Unions, protests and balloons
Outside a strip mall on Staten Island, a giant balloon rat lies deflated. I can’t imagine a less auspicious scene for the free-speech fight of the century. But it’s here the Trump administration has chosen to argue that free speech is for corporations — and not for workers. And it’s here that unions have an opportunity to reverse decades of anti-union legal dogma.
Last month, the National Labor Relations Board sought an unprecedented injunction against Laborers Local 79 in Staten Island to stop them from inflating a rat balloon. Previously, agency staffers leaked word that Peter Robb, Trump’s NLRB general counsel, “hates” the rat and was determined to exterminate it.
The NLRB is a federal agency tasked by statute to protect the rights of workers. But under Republican administrations, it does the opposite.
Now, by taking aim at the inflatable rodent, the NLRB invites a First Amendment challenge. Conservative jurists have spent centuries trying to keep unions as far from free speech rights as possible — unless it can be used as a weapon against unions. In last year’s Janus vs. AFSCME case, the conservative majority upended a 40-year-old precedent by inventing a free-speech right for public sector workers to refuse to pay union fees.
If Scabby the Rat winds up before the Supreme Court because unions claim that popping their balloon is a violation of their First Amendment rights (which it clearly is), the justices will be faced with squaring Janus with free speech in favor of forming a union.
Some history. Unions have long been subject to speech restrictions that would never be applied to a corporation. One reason is that our nation’s main labor law, the National Labor Relations Act, is constitutionally rooted in Congress’ authority to regulate interstate commerce and not in workers’ constitutional rights. Another reason is the anti-union Taft-Hartley Act, which outlawed solidarity.
Today, we think of the act’s “right to work” provisions as its biggest attack on labor. But the ban on strikes and boycotts against companies that do business with an employer in a labor dispute — on pain of multi-million dollar fines — has actually been the greater sap on union power and organizing prowess.
Essentially, Trump’s NLRB is using the act to argue in federal court that cartoonish vermin are a “signal” to engage in “illegal” boycotts, and inherently coercive. They’re leaning hard on outdated stereotypes about union thugs and broken kneecaps.
Even on Staten Island, which has one of the highest unionization rates in the country, no one is going on strike or refusing to shop at ShopRite because of a balloon. The rat doesn’t coerce; it merely makes a mockery out of a union-busting boss.
Before he joined the NLRB, Robb was a construction-industry lawyer. He’s probably spent countless billable hours listening to thin-skinned real estate developers like Donald Trump complain about rat balloons outside their windows.
The Southern District court, often a problem for Trump, rejected the NLRB’s request for a preliminary injunction on Monday. But the case will move forward. A government agency is making a value judgment about the form and content of unions’ speech that has nothing to do with coercion or its impact on commerce. The AFL-CIO must wage this free speech fight.
It’s an opportunity to challenge the entire premise of a legal regime that is directly responsible for the decimation of the labor movement.
Corporations have every legal tool at their disposal to resist workers’ unionization efforts and the economic power to subcontract and reclassify the last remaining union jobs. Taft-Hartley denies workers the right to even ask fellow workers across corporate lines to leverage their own economic power to help them gain or maintain their labor rights. When it passed in 1947, one in three workers belonged to a union. Today it’s less than one in 10, even though polls show that at least half of all workers want to join a union.
Workers either have free speech rights and equal protection under the law, or the courts are where democracy goes to die.
[This op-ed originally appeared in the New York Daily News.]
A history lesson on saving labor: Look to how unions rebounded in the 1920s for insight on how they can make progress today
Many obituaries have been written for labor. The anti-union Janus vs. AFSCME Supreme Court decision is already being followed by a dark money campaign to convince workers to quit their unions. In the private sector, employers evade the reach of workplace-based union contracts by off-shoring, sub-contracting and freelancing jobs.
Despite occasional bright spots like Missouri voters’ rejection of right-to-work, this is labor’s lowest point in a century.
The parallels between today and the 1920s are striking. Like then, unions faced existential threats and structural challenges with no obvious solutions. Yet that nadir was quickly followed by the wave of sit-down strikes, the passage of laws protecting workers’ rights to organize and an unprecedented half-century of shared prosperity.
This begs the question: what were union activists and allies doing in the 1920’s that set them up for such a dramatic reversal of fortune? And is there similar under-the-radar work we should be doing today?
Perhaps the least-appreciated most-impactful effort came from the labor colleges that served as strategic retreats for union activists. At Brookwood Labor College, in upstate New York, activists got away from the daily grind of their defensive crouch organizing. College leaders, prodded by legendary organizer A.J. Muste, pursued a line of critical inquiry with little patience for easy answers or sacred cows.
They grappled with how to reconcile traditional craft union strategies with mass production and how to revive a movement that’s rooted in our occasional refusal to work at a time that few workers were willing or able to strike. Without them, it’s hard to imagine the sit-down strikes and huge organizing campaigns of the 1930’s would have sprung up in such a briefly revolutionary time period.
That culture of debate and disagreement is badly needed today. Unions prioritize unity but without a real plan to win it can lead to a strategic cul-de-sac, much like the one unions found themselves in a century ago.
In the 1920s, an organized left advocated for “one big union”-style multiracial organizing and contested for leadership within the traditional unions. Where there was no union, they embraced alternative forms of organizing.
These activists had an analysis of what core industries of the economy were essential to be organized. Socialists took jobs in steel and auto factories when no unions were serious about organizing nor was there a clear model for how to do it. Their presence as workplace leaders made them indispensable activists in the 1930s strike wave.
For the past four decades’ corporate assault on labor there haven’t been a lot of socialists around. Thankfully, thousands of new activists are rallying to the red flag.
Witness Democratic Socialists of America, lately seen toppling machine Democrats and ruining the meals of Trumpist baby-snatchers. These activists may be essential to labor’s next upsurge. They must be similarly thoughtful as their ideological forebearers were about where to be organizing.
I don’t know what a successful union campaign would look like in the tech sector. It definitely won’t look quite like the sit-down strikes of 1934 or following the National Labor Relations Board’s rigged election rules, but it will require activists intentionally taking those jobs together and becoming trusted and respected colleagues.
Finally, the 1920s — like today — saw an emerging coterie of intellectuals and reformers advocate for getting out of the boom and bust cycle of periodic economic depressions by empowering unions to do the real Robin Hood work of income redistribution.
They didn’t talk of “making it easier for unions to organize.” Their labor law was a blunter instrument, formally encouraging collective bargaining as the country’s policy by forcing employers to recognize unions and punishing retaliation for or interference with workers rights to organize.
If the only thing that can arrest our country’s slide into barbarism and economic disorder is a robust labor movement we need legal regime that thunders, “there will be unions!” and puts union pay standards, benefits and rights in every workplace.
The biggest lesson of the 1920’s to heed is that while organizing for long-term change, we must also be formulating big demands to democratize the workplace. We’ll have a very brief and unexpected window. Let’s be ready.
[This article originally appeared in the New York Daily News.]