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Month: September 2021

Jennifer Abruzzo, the NLRB’s General Counsel, Is Labor’s Best Legal Friend

Posted on by Hamilton Nolan
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In an interview, Abruzzo discusses independent contractors, penalizing bad employers and what she might do to make good faith bargaining a reality in America.

Joe Biden has pledged to be the most pro-union president in recent memory. Whether that turns out to be true will depend in large part on the work of Jennifer Abruzzo. Since being confirmed as the National Labor Relations Board’s top lawyer two months ago, Abruzzo has wasted no time laying out a strong pro-worker agenda. A memo released in August outlining her priorities indicated her intent to revisit a number of policies in ways that could make them much friendlier to unions and to worker organizing. 

Among the most significant are the “Joy Silk” doctrine, which could require employers to demonstrate actual reasons for not voluntarily recognizing unions; Ex-Cello Corp, which could impose far more significant penalties on employers for bad faith bargaining; and other items touching on everything from independent contractor classification to the rules for employer handbooks.

Abruzzo, an NLRB veteran who last worked as a lawyer for the Communications Workers of America, is essentially the opposite of her predecessor, Peter Robb–a Trump appointee hostile to organized labor who was fired shortly after Biden took office. We interviewed Abruzzo via email about her priorities, keeping bad employers in line and the flaws inherent in American labor law. 

Your intent to revisit the Joy Silk doctrine has gotten a lot of attention. Can you explain your thinking behind that, and what you think the practical effects of a change in that policy might be for unions? You’ve said you also want to revisit Ex-Cello Corp, dealing with potential penalties for employers who refuse to bargain in good faith. Can you explain what you think might result from revisiting it? 

Jennifer Abruzzo: When Congress passed the National Labor Relations Act (NLRA), it said in Section One of the Act that it was the policy of the United States to “encourag[e] the practice and procedure of collective bargaining” and to do so “by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” To effectuate this policy, there must be meaningful remedies when employers interfere with workers exercising their rights to organize and to bargain. 

Both the Joy Silk and Ex-Cell-O doctrines deal with remedies to employer interference in that initial, and often vulnerable moment, when workers first organize a union and request to bargain. Under the Joy Silk doctrine, from 1949 until about 1969, the Board would issue a bargaining order if an employer refused to bargain upon a request for recognition from a union that represents a majority of employees, if that refusal was in bad faith. 

The Ex-Cell-O case dealt with monetary remedies when an employer refused to bargain in good faith. In that case, the D.C. Circuit actually told the Board it had the power to order such a remedy and that such a remedy was necessary to effectively remedy the harm. So, I think that both doctrines have support in the Act’s purpose, history, and federal court precedent and are worth reexamining in order to more effectively fulfill the Act’s mission. 

There has been a long term trend of companies replacing full-time workers with “independent contractors.” What if anything do you anticipate doing during your tenure that might help give labor protections to independent contractors?

Abruzzo: Whether a worker is an employee or independent contractor is a question of law based on the actual employment relationship—it is not determined by an employer’s label or classification. In the Taft-Hartley amendments to the NLRA, Congress excluded independent contractors from the protections of the National Labor Relations Act. For this reason, whether a worker is an employee versus an independent contractor is crucial. If you are an employee, you have the full protections of the National Labor Relations Act in your workplace, such as the right to organize with your co-workers to improve health and safety, which is a critical right as the country is dealing with a pandemic. If you are an independent contractor, you have none of those legal protections. 

In 2019, in a case called Velox Express, the Board majority at that time rejected an argument that employer misclassification of an employee as an independent contractor was itself a violation of the Act. Chairman McFerran (then Member McFerran) wrote a dissent agreeing with the argument. She explained that when a worker is in fact an employee with NLRA rights but is being told by their employer that they are an independent contractor, it sends a clear message to the worker that, in the employer’s view, they have no rights under the Act. She further explained that this communication could unlawfully interfere with the exercise of an employee’s rights. 

In my first General Counsel Memorandum, I asked our Regional Offices to submit cases for my consideration as to whether and under what circumstances misclassification itself can violate the National Labor Relations Act, and as to the scope of the independent contractor exemption. With regard to the latter, I believe the statute should be broadly construed and the common law, which delineates a number of factors, provides a very good framework for determining employee status. In the SuperShuttle DFW case, the Board majority at the time put substantial emphasis on the significance of one factor—entrepreneurial opportunity—and that warrants further scrutiny. 

Under your existing power, what do you think the NLRB can do to create penalties for employers who violate labor law that are meaningful enough to reverse the current situation in which it makes good economic sense for employers to engage in illegal union busting tactics? 

Abruzzo: I will pursue the full breadth of possible remedies under the NLRA to deter violations and to protect and enforce the statutory rights of workers in this country. Full and effective remedies are so important to effectuating the NLRA. It is for that reason that one of my first priorities as General Counsel was to issue GC 21–06 on “Seeking Full Remedies” and GC 21–07 on “Full Remedies in Settlement Agreements,” memos in which I ask our Regional Offices to seek the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices. 

Under the NLRA, the Agency cannot mete out fines or penalties to violators of our statute, but it does have the broad discretionary power to provide make-whole remedies to victims of those violators. A make-whole remedy is one that aims to restore the worker’s situation prior to being subject to the unlawful conduct. For example, if a worker was unlawfully fired, we ask what wages and benefits the worker lost as a result of the firing. But we also need to determine what other economic losses a worker suffered as a result of the unlawful firing. Did they lose their work visa, or their car because they were unable to keep up with their payments? Did they have to move to find another job? Did they need to obtain health insurance coverage or incur medical expenses due to the loss of coverage? Additionally, we must try to discern how the firing affected those in the worker’s workplace, in other words, the chilling effect it had on other workers’ ability to exercise their statutory rights, and how we can most fully remedy those detrimental effects. 

So, there is no question in my mind that we can and should do more pursuant to our Congressional mandate under the NLRA as it currently stands. 

What is your view on minority or “members only” unions, meaning unions representing less than 50 percent of a workplace? Some believe that employers should be obligated to at least bargain with the members of such a group, even if the entire workplace is not unionized. Is this an issue you anticipate addressing?

Abruzzo: What are sometimes called “members only” or “minority” unions have been present throughout U.S. history. These kinds of formations have often acted as precursors to exclusive majority representatives. The NLRA currently protects the rights of workers to act collectively and engage, through representatives if they so choose, with their employer to improve their working conditions. I encourage engagement between management and labor to ensure that workers’ voices are heard and workers’ concerns are elevated in order to reduce workplace conflict. 

As to requiring an employer to bargain or confer with a members only union on behalf of its members, this argument has previously been made by academics and practitioners through various submissions, cases, and a petition for rulemaking. If this issue is brought before me as General Counsel, I would carefully consider it as I do all matters brought to my attention. 

Is there any way for workers, unions, and America as a whole to break out of the sort of frantic pendulum of labor rules, as the NLRB swings back and forth between Democratic and Republican administrations? It feels like any gains workers make now will inevitably be rolled back by a future, more conservative board. How does the NLRB make progress that lasts? 

Abruzzo: My job as General Counsel of the NLRB is to fully effectuate the Act to the best of my ability, for as long as I have the honor to serve in this role. I am fortunate to have an excellent cadre of dedicated and talented board agents in the field offices and in headquarters to support my efforts to ensure that we are achieving our Congressional mandate to promote industrial stability and collective bargaining and to protect the rights of workers to act together to improve their wages and working conditions. 

It is worth noting that the vast majority of meritorious case resolutions occur without any Board intervention (through settlements), thus, the extent of “flip flopping” is minimized. Notably, it makes it that much more important to ensure that the Agency receives adequate budgets so that the Agency has the staffing and resources to educate employees, employers, labor organizations, and community advocates and members, about statutory rights and obligations, to deter violations, and to obtain full remedies during early enforcement to diminish workplace conflict and broader industrial strife. 

You’ve worked on the regulatory side of labor, and inside a union. When you think about the barriers to a true revival of union power—how much of that is regulatory, how much is legislative, and how much do you think are missteps of the labor movement itself?

Abruzzo: As an independent federal agency, the NLRB’s role is to vigorously effectuate the NLRA’s mission, which includes protecting workers’ rights to organize and collectively bargain. I have spent the vast majority of my career as a public servant at the NLRB enforcing the Act and so that is what I will speak to. As General Counsel, I can think of no better calling than to ensure that the rights of workers in this country are protected and that violations of these rights are swiftly and fully remedied. 

I enjoy good relationships with labor and management practitioners and worker and business advocates, and fully expect to continue to collaborate with them, as well as with Agency personnel, to ensure that we are doing our jobs as effectively and efficiently as possible. This includes having a robust outreach program, particularly reaching those in vulnerable and underserved populations. I certainly think that there needs to be a broader focus on these populations and on workers in general to ensure that more equitable workplace conditions and opportunities are afforded so that they and their families and their communities can not only survive but thrive, particularly during these challenging times. 

About the Author: Hamilton Nolan is a labor reporter for In These Times. He has spent the past decade writing about labor and politics for Gawker, Splinter, The Guardian, and elsewhere. You can reach him at Hamilton@InTheseTimes.com.

This blog originally appeared at In These Times on September 27, 2021. Reprinted with permission.


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For Many, the Pandemic Was a Wakeup Call About Exploitative Work

Posted on by Marie Solis
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By the time Covid-19 hit, Lily, 28, had been with her employer for four years and in her part-time role for the past two. Not once in those four years had her hourly wage moved above the state-required minimum in her upstate New York town— currently, $12.50. Lily was living with her parents to save money, and, because her job was in ticketing sales for professional sports, it was competitive. She hadn’t given much thought as to why she was paid so little; she was just grateful to work in the industry she loved.

But when Lily was furloughed during the pandemic, she had a creeping suspicion her labor had been undervalued. With professional sporting events shut down, she took on remote work, first as a customer service agent, then as a New York contact tracer — jobs that paid nearly double what she had been making. “I was like, â€Oh, I’m worth more than minimum wage,’” Lily says. (Lily is a pseudonym requested in fear of retribution from future employers.) “I didn’t even realize how bummed I was. A plane ticket was 25% of my net worth. I was worrying about putting gas in my car to get to work.” 

These remote jobs were temporary, however, and when Lily started interviewing for new positions, she was disappointed to find many companies still only offering just about minimum wage. One job offered an extra $2.50 after negotiation, but Lily turned it down—the venue was also an extra hour away, and she still needed to cover gas. 

Lily has mostly been relying on savings to get by after spending over a month hunting for full-time work, hoping to find a job that allows employees to work remotely on a permanent basis. Her goal is a $20 wage, but she worries whether that goal is realistic. She had a “big, revelatory moment” when she was earning more money, she says: “I started eating healthier. I bought myself workout clothes for the first time in years. You can have all the therapy sessions in the world, but an influx of cash will really change the way you feel about yourself.” 

A pernicious corporate narrative suggests that workers like Lily—who ask for a decent wage and marginal flexibility from an employer—are simply lazy. Many understaffed employers have chalked up their problems to workers coasting on unemployment benefits or stimulus checks. They complain about the federal unemployment supplement and the states that have loosened the strings on unemployment payments (such as requirements to continually search for a job or to accept any offer).

But the 26 mostly red states that recently terminated the $300 weekly unemployment supplement from the American Rescue Plan, purportedly to incentivize workers, did not all see an immediate increase in job searches. Many workers have valid reasons not to return to work regardless of any “incentives”—one of the top reasons being the exorbitant cost of child care. As the pandemic closed daycares and schools and left parents in the lurch, many two-parent households realized it would be cheaper for one parent to stay home rather than work. Others are wary of exposure to Covid-19.

To be fair, there’s evidence that for some people, pandemic relief measures (or pandemic savings) have enabled joblessness by choice. A June survey by the jobs website Indeed.com found a fifth of job seekers were not urgently searching for work because of their “financial cushion.” A Morning Consult poll that same month found 13% of people receiving unemployment checks had turned down job offers because of that short-term stability.

To deem this unemployed behavior “lazy,” however, one must be predisposed to thinking work is some sort of moral imperative. Rarely have workers had the freedom to be selective about where, when and how much they work—to decide their own fates. In light of this profound shift, perhaps it’s understandable that workers are unwilling to settle.

There are more existential questions, too. Workers are re-evaluating what role work should have in their lives, whether it’s important to their sense of self, what they would do with their time otherwise. Some may decide the jobs they left are what the late anthropologist David Graeber termed “bullshit jobs,” work “that is so completely pointless, unnecessary, or pernicious that even the employee cannot justify its existence.” After such a revelation, how could employers expect workers to return to business as usual?

In her seminal 2011 book The Problem With Work, Kathi Weeks argues that wage labor (one of the least-questioned arrangements in U.S. culture) is actually a social convention, not an economic necessity. As workers have become more productive and automation has picked up more slack, not much serious consideration has been given in the United States to the idea of reducing work hours. Instead, people work more and more. According to Weeks, having a job confers moral goodness and other virtues upon those who perform it, which is why people rarely question whether work is, in itself, good. If they did, they might see how work limits their pleasure, creativity and self-determination.

The post-work future Weeks imagines, citing the scholarship of Paul Lafargue, would allow us to expand “our needs and desires beyond their usual objects”—to understand how we want to spend our finite time in the world, then go do it. The refusal to work is an important step toward getting there, according to Weeks. When workers reduce the hours they spend working (or stop working altogether), they are rejecting the idea of work as our “highest calling and moral duty … as the necessary center of social life.” It also allows workers to organize toward their revolutionary visions while improving their present circumstances.

The current historical moment isn’t without its precedents. A kind of mass work refusal took place in the 1970s, when one in six union members went on strike, demanding more control over their workplaces and more dignity. But the anti-work flashpoint was quickly “co-opted by managerial initiatives as an excuse for work intensification,” Weeks tells In These Times. Employers attempted to make work “more participatory, more multi-skilled, more team-based so that you could work even longer and harder.”

The pandemic-era shift seems more promising, Weeks says: Today’s workers are fed up with intensification. They are not merely thinking about what other kind of job they might have, but about whether they want to work at all (and how little work they can get away with).

“So many of the criticisms we are hearing about are focused on both the quality of work, the low pay and brutally intensive pace of so many jobs, and the question of quantity—for example, the long hours needed to make enough in tips in restaurant and service work and the added time of commuting to most jobs,” Weeks says. “The overwhelming response to the prospect of returning to work as usual is that people want more control over the working day and more time off work to do with as they will.”

Without work taking up 40 or more hours each week, those who lost their jobs to the pandemic have discovered other ways to fill their time. Baking bread became such a popular quarantine hobby that it verged on cliché, but many who tried it found it comforting and deeply satisfying. One might say the bakers were not alienated from their labor for once—they got to eat the bread at the end. Others found themselves with more energy to dedicate to activities like yoga, gardening and roller skating.

“I … got really into cooking at home, because I really do love to cook,” Caleb Orth, a 35-year-old in Chicago, told the New York Times’ podcast The Daily in August. “It was a hobby of mine before I lost my job,” he said. But at the restaurant where he’d worked 80 hours a week, he’d tired of making “somebody else’s food, the same thing over and over and over. So during Covid, I’d be making meals at home, and I got really into it.”

Many like Orth expressed amazement at how good it felt to be doing things that were good for their well-being. Work suddenly seemed like it might just be one element of life, not the center of it.

When the bar where Jessica McClanahan worked shut down in March 2020, she set about creating a small art studio in her home in Kansas City, Mo. She filled a corner of her living room with drawing and book-binding supplies, acquired an antique desk from a friend and assembled a small altar for cherished objects. McClanahan’s boyfriend, who had worked with her at the bar, got laid off around the same time; he fixed himself an art studio upstairs. While the two collected unemployment—about $325 weekly, each, plus a $600 weekly federal supplement—they fell into a routine. They would wake up each morning, have breakfast, then make art in their respective spaces.

“Sometimes I would just mess around and not really do anything,” says McClanahan, 37. “But I got to be like, â€Oh, do I want to draw a picture? Yes. I’m gonna do that. Do I want to paint? Make a book? Take photographs? I also taught myself how to embroider. It was just a free-for-all for creativity, which I haven’t had in a long time.” She made a leather-bound sketchbook for her boyfriend for Christmas, a guestbook for his parents’ 50th wedding anniversary and dozens of postcards to send to friends across the country.

McClanahan, who has a master’s in library science and went to art school, had long intended to spend more time on creative pursuits. When she started her bartending career in 2005, she saw the service industry as a reliable way to make rent and pay off student loans. While her friends were making minimum wage at art galleries, she made hundreds in tips in a single night. But it got harder to make time for art, especially when she became a bar manager. McClanahan says she felt glued to her phone even when she wasn’t on the clock, troubleshooting crises at work, fielding texts from people who called in sick and answering emails from vendors.

After trying out a few other jobs during the pandemic, McClanahan decided to go back to bartending when restaurants reopened—but quickly realized she couldn’t return to the lifestyle she had as a manager. “I was really stressed all the time, and I kept saying to myself over and over, â€I don’t know why I am spending so much time worrying about something that isn’t even mine,’” McClanahan says. The downtime while she was unemployed gave her “freedom and peace of mind.”

“That really got the ball rolling for me in terms of thinking about what I’m willing to tolerate at my job going forward,” McClanahan adds.

Some employers are starting to see obvious solutions to their so-called labor shortage: better conditions, signing bonuses, higher wages, stronger benefits. The federal minimum wage is still not $15, but a growing number of companies have begun offering it (including giant corporations like Target, Best Buy, CVS Health and Under Armour). In a press release, Under Armour executive Stephanie Pugliese called the move a “strategic decision … to be a competitive employer.”

With the federal unemployment extension set to expire September 6, as this issue went to press, the 13% of workers who have refused jobs because of that stable income may no longer be able to simply opt out. Regardless, the new skepticism of work as a de facto good will likely stay. Our time, after all, is our lives.

Neither Lily nor McClanahan is presently receiving unemployment, and they both now work in the service industry. Lily believes this job is a temporary arrangement, while McClanahan plans to continue as a bartender.

“After having five different jobs during the pandemic, I’ve come back around to the idea that this is the kind of work I want to be doing if I have to work at all,” McClanahan says. “But my attitude toward devoting all of my lifeblood to work has definitely changed.”

About the Author: Marie Solis has written for the New York Times, The New Republic and The Nation.

This blog originally appeared at In These Times on September 24, 2021. Reprinted with permission.


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PROP 22 WAS A FAILURE FOR CALIFORNIA’S APP-BASED WORKERS. NOW, IT’S ALSO UNCONSTITUTIONAL.

Posted on by Brian Chen and Laura Padin
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In a landmark decision, the Alameda Superior Court of California recently ruled that Proposition 22, the ballot initiative that excluded many app-based workers from foundational labor laws, violates the California constitution and must be struck down in its entirety.

The decision, which will undoubtedly be appealed by the app-based companies, represents a huge setback in the companies’ power grab to rewrite U.S. labor laws and exempt themselves from labor standards that apply to all other employers. It also represents an important advancement in the gig-worker-led movement for living wages, rights at work, employment benefits, and the right to exercise collective democratic power. 

What Was California’s Prop 22?

California’s Prop 22 was a ballot initiative led by app-based companies such as Uber, Lyft, and DoorDash to exclude ride-hail and food-delivery app-based workers from nearly all employee rights under state law, including the right to a minimum wage, time-and-a-half for overtime, expenses reimbursement, and benefits such as unemployment compensation and state workers’ compensation.

The companies developed the ballot initiative in response to the California legislature’s passage in 2019 of AB5, a simple and straightforward test for determining who is an employee and who is an independent contractor. Although Uber and Lyft ride-hail drivers and DoorDash, Instacart, and Postmates food-delivery workers are clearly employees under the AB5 test, these companies steadfastly refused to comply with the law and continued to deny their workers the rights and benefits to which they are entitled as employees.

As state and local officials sued Lyft, Uber, DoorDash, and Instacart to get them to stop violating the law, the companies spent a whopping $224 million on Prop 22. Among the provisions included in Prop 22 were an inferior set of benefits that the companies agreed to provide their app-based workers. And, worst of all, Prop 22 could only be amended by a seven-eighths vote of the state legislature, making its provisions virtually impossible to repeal or change.

To get Prop 22 passed, Uber and Lyft bombarded television, social media, and their own workers with pressure tactics and deceptive advertising, including the flat-out false claim that Prop 22 would increase, not decrease, workers’ rights. As a result, one survey of California voters founds that 40 percent of “yes” voters thought they were supporting gig workers’ ability to earn a living wage. [1] Other voters said they did not realize they were making a choice between guaranteed rights and protections through employment and “an arbitrary set of supplemental benefits . . . designed by the gig companies.” [2]

Uber also adopted a new cynical marketing slogan—“If you tolerate racism, delete Uber”—to claim solidarity with the Black Lives Matter movement while, at the same time, seeking to enshrine a second-class employment status for California’s ride-hail and food-delivery app-based workers, who are overwhelmingly people of color and immigrants, in what legal scholar Veena Dubal has called a “new racial wage code.”[3] Dubal writes: “By highlighting particular forms of racial subjugation, while ignoring and profiting from others, the corporate sponsors of Prop 22 successfully concealed the very structures of racial oppression that [Prop 22] entrenched and from which companies benefit.”[4]

What Happened After Prop 22 Passed?

After Prop 22 passed, and app-based workers were stripped of their employee rights, the benefits package that the companies offered in exchange proved to be a mirage. In order to qualify for a promised healthcare stipend, for example, app-based workers need to a purchase a covered policy in advance and get enough work hours to qualify for the stipend; if they don’t, they must pay the full cost of the premium.[5] One survey of app-based workers found that only 15 percent have applied for the healthcare stipend.[6]

And, despite the companies’ claims of guaranteed earnings, pay decreased for many ride-hail and food-delivery drivers after Prop 22 passed. According to Peter Young, an app-based ride-hail and food-delivery driver for years, incentives offered to drivers disappeared after Prop 22 passed, and he experienced cuts to his base pay and unpredictable fluctuations in income.[7] Ben Valdez, an Uber driver, similarly said that pay continues to vary widely, and that he averages about $150 per day before expenses for 12 to 15 hours of work—well below California’s $14 minimum wage.[8] In fact, a study by labor economists found that Prop 22 guarantees a minimum wage of only $5.64 per hour after expenses and waiting time are taken into account.[9]

Even the companies’ central claim—that excluding their workers from employee rights and benefits is necessary to keep their prices affordable—proved to be false. A month after Prop 22 passed, both DoorDash and Uber Eats announced price hikes, a move the workers’ advocacy group Gig Workers Rising decried as a “corporate bait and switch.”[10]

The aftermath of Prop 22 made clear that its sole objective was to insulate app-based companies’ business model from any legal or worker challenge, so the companies could once and for all pass costs onto workers and consumers in a last-ditch attempt at profitability.

Why Did the Court Ruling Find Prop 22 Unconstitutional?

In his ruling that Prop 22 is unconstitutional and unenforceable, California Superior Court Judge Frank Roesch found that the ballot initiative infringes on the power explicitly granted to the California Legislature to regulate workers’ compensation.[11] Prop 22 also included language that prevents the state legislature from passing laws that allow app-based workers to unionize, which the court ruled violated a constitutional provision requiring that ballot initiatives be limited to a single subject.[12] The court also took issue with the substance of this provision, noting that preventing app-based workers from organizing “does not not protect work flexibility, nor does it provide minimum workplace safety and pay standards for those workers. It appears only to protect the economic interests of the network companies in having a divided, ununionized workforce.” [13]

What’s Next Now That Prop 22 Is Unconstitutional?

The app-based companies will appeal the court’s decision, and they will ask for a stay of the ruling while the appeal is pending. If granted, it means that Prop 22 would remain in effect—and app-based drivers and food-delivery workers would continue to be excluded from most state labor rights and benefits—through the appeals process, which could take a year or longer.[14]

What Other States Face Legislation Like California’s Prop 22?

Regardless of the final outcome in the Prop 22 case, app-based companies will continue to spend millions to fund legislation and ballot initiatives that would make it easier for them to avoid accountability as an employer and to depress wages and working conditions for their app-based workers. Their CEOs have made clear that Prop 22 is their model legislation across the country.[15]

In Massachusetts, for example, Uber, Lyft, and DoorDash are funding another ballot initiative to rewrite labor laws to benefit themselves and enshrine independent contractor status for their app-based workers.[16] The push for a ballot initiative comes after Massachusetts Attorney General Maura Healey sued Uber and Lyft for misclassifying their drivers as independent contractors. It appears that the companies, having determined that their likelihood of winning in court is low, have decided it will be easier to simply rewrite the law.

Prop 22–like legislation does not just hurt workers who currently obtain work through apps and other online platforms. At risk is virtually any worker whose job functions can be “gigged out” piecemeal on an app.

Luckily, the aftermath of Prop 22 mobilized app-based workers more than ever, and they are fighting back. In Massachusetts, workers’ rights groups and community organizations launched the Coalition to Protect Workers’ Rights, which aims to “combat Big Tech companies’ campaign to undermine the rights and benefits of their workers.”[17] In New York, a coalition of workers’ rights organizations defeated a state bill pushed by app-based companies that would have created a top-down collective bargaining structure for ride-hail and food-delivery app-based workers while excluding them from nearly all state and local labor rights and protections.[18]

This progressive change is due to the persistence and commitment of workers and their advocates. App-based workers are emboldened in the fight for equal rights, and they are just getting started.

ENDNOTES

[1] Faiz Siddiqui & Nitasha Tiku, Uber and Lyft Uses Sneaky Tactics to Avoid Making Drivers Employees in California, Voters Say. Now They’re Going National, Washington Post, Nov. 17, 2020.

[2] Id.

[3] Veena Dubal, The New Racial Wage Code, Hastings Law & Policy Review, at 3-4, Aug. 17, 2021, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3855094. According to one study of the San Francisco Bay Area in 2019, immigrants and people of color comprised 78 percent of Uber and Lyft drivers, most of whom relied on these jobs as their primary source of income. Chris Benner, Erin Johansson, Kung Feng & Hays Witt, On-Demand and On-the-Edge: Ride-hailing and Delivery Workers in San Francisco, University of Santa Cruz Institute for Social Transformation, May 5, 2020, at 2 https://transform.ucsc.edu/wp-content/uploads/2020/05/OnDemandOntheEdge_ExecSum.pdf.

[4] Id. at 20.

[5] Megan Rose Dickey, California Gig Workers Say Prop. 22 Isn’t Delivering Promised Benefits, Protocol, May 25, 2021, https://www.protocol.com/policy/gig-workers-prop-22-benefits.

[6] Tulchin Research, April 20, 2020

[7] Michael Sainato, â€I Can’t Keep Doing This’: Gig Workers Say Pay Has Fallen After California’s Prop 22, Guardian, Feb. 18, 2021,

[8] Id.

[9] Ken Jacobs & Michael Reich, The Uber/Lyft Ballot Initiative Guarantees Only $5.64 an Hour, UC Berkeley Labor Center, Oct. 31, 2019, https://laborcenter.berkeley.edu/the-uber-lyft-ballot-initiative-guarantees-only-5-64-an-hour-2/.

[10] Eve Batey, That Price Hike That Delivery Apps Threatened If Prop 22 Failed? It’s Happening Anyway, Dec. 15, 2020, https://sf.eater.com/2020/12/15/22176413/uber-eats-doordash-price-hike-fee-december-prop-22

[11] Castellanos v. California, Case No. RG21088725, at 2-4 (Alameda Co. Sup. Ct. Aug. 20, 2021).

[12] Id. at 10-11.

[13] Id. at

[14] Suhauna Hussain, Prop 22. Was Struck Down; Will the Ruling Stick? Uber and Other Gig Companies Plan to Appeal; It Could Drag on for More Than a Year, L.A. Times, Aug. 26, 2021.

[15] Faiz Siddiqui, Uber Says It Wants to Bring Laws Like Prop 22 to Other States, Washington Post, Nov. 5, 2020, https://www.washingtonpost.com/technology/2020/11/05/uber-prop22/.

[16] Nate Raymond & Tina Bellon, Groups Backed by Uber, Lyft Pushes Massachusetts Gig Worker Ballot Initiative, Reuters, Aug. 4, 2021.

[17] Grace Pham, The Launch of a New Coalition: Protecting the Rights of Gig Workers in Massachusetts, Massachusetts Jobs with Justice, June 29, 2021, https://www.massjwj.net/blog/2021/6/29/the-launch-of-a-new-coalition-protecting-the-rights-of-gig-workers-in-massachusetts

[18] Edward Ongweso Jr., A Plan to Tame Labor Unions for Uber and Lyft Has Been Scrapped in New York, Vice, June 9, 2021.

About the Author: Brian Chen is a staff attorney at the National Employment Law Project. Brian focuses on combating exploitative work structures that subordinate workers in low-wage industries. Brian is admitted to practice law in New York and is a proud member of the NELP Staff Association, NOLSW, UAW, Local 2320.

About the Author: Laura Padin joined NELP in 2018 as a senior staff attorney for the Work Structures Portfolio. Laura’s work focuses on policies that improve workplace standards and economic security for the contingent workforce, including temporary workers and workers in the “gig economy.” Laura is a proud member of the NELP Staff Association, National Organization of Legal Services Workers, UAW Local 2320.

This blog originally appeared at NELP on September 16, 2021. Reprinted with permission.


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5 Tips to Make Video Meetings Fairer to Anxious Employees

Posted on by Amy Deacon
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Video calls may have taken over as the meeting method of choice during the pandemic, and the surge in remote work means that they won’t be going away any time soon. Many people appreciate the convenience and flexibility of being able to show up on time no matter where they are physically. Still, it would be wrong to assume that everyone is entirely comfortable with this new working method.

It’s not always easy to tell who might be struggling with the new meeting schedule. For example, some employees that are more than comfortable meeting in person may be anxious about appearing on camera. On the other hand, people more than happy to chat for hours on the phone may still be coming to terms with the concept of online meetings.

Managers who are already comfortable with online meetings may be surprised to learn that one study suggests that 73% of people suffered from Zoom anxiety in 2020. A further study indicated that worries over backgrounds, appearance, and speaking over someone all play a part and virtually equally between males and females.

Essentially, the majority of people still have concerns about meeting online. Nevertheless, it’s a crucial component of adjusting to remote work, so what can you do about it? Here are five ways that you, as a manager, can promote a comfortable video calling experience for everyone involved.

1. Make Being on Screen Optional

Many employee concerns around video calls stem from the thought of being on screen. While comfortable in the office, their webcam acts as a window into their home. One of the quickest ways to make everyone more comfortable is to consider appearing on camera optional.

Some people like to be able to see who they’re talking to. Others want to ensure they have the full attention of the room. However, it’s time to accept that employees are often responsible and eager to do as their employer requires, and appearing on a screen shouldn’t make or break their efforts.

It may require additional trust from some managers, but the benefits are clear. Body language can be overrated on video calls, too – in some cases, it’s easily misinterpreted. Some employees might be concerned about this happening to them, but accepting that cameras aren’t essential to productivity can eliminate much of the anxiety associated with these calls.

2. Encourage Flexibility

Try not to get into the habit of scheduling video calls at short notice. This can cultivate an opinion among employees that they are expected to be at their desks at all times. That in itself can be a significant cause of anxiety, especially for those that have struggled to adapt to remote work and have altered their routines as a result.

It might make sense to implement an official policy on video meetings, such as providing at least 24 hours’ notice or potentially even banning them on specific days. There’s also evidence to suggest that it may be time to make all meetings optional, although this won’t work for every organization, especially those with just a handful of key people.

Giving people time to prepare for an upcoming meeting can ensure their schedule is free and that they’ve taken whatever steps work for them to make them feel more comfortable on screen.

3. Make it Your Job to Promote Social Interaction

There’s always a risk that anyone that misses out on video calls through anxiety may exacerbate their issues by reducing overall social contact. Like any competence, it is possible to lose social skills over time when left unused.

Video calls can replace face-to-face meetings, but they’re also a great way to keep up at least some of the more sociable interactions from the workplace. It may sound counterintuitive to arrange additional calls for those suffering from anxiety, but many people perform better under social circumstances than professional ones.

These meetings really should be optional, but someone needs to take the lead in ensuring they’re available for people that wish to attend. As a leader, there is no better candidate than you.

4. Make a Point of Mentioning Mental Health

Mental health is not a workplace taboo. On the contrary, many managers consider it part of their job to ensure that people feel good as issues can lead to a reduction in performance.

Most employees would rather not discuss their personal mental health, especially in front of groups. However, some are even anxious about broaching the subject at all. Make it clear on video calls that you’re aware of how remote work can affect people and that you’re more than happy to arrange for assistance.

If you’re comfortable providing that assistance yourself on a one-to-one basis, then do so. If not, ensure that you have someone you can send employees to for help. Such a seismic change in working habits affects everyone differently. Even if they merely need reassurance that their camera and microphone setup works, it can significantly improve their confidence levels.

5. Support Employees at their Own Pace

Some employees will never forget the first day they didn’t even have to get out of their pajamas for work. Others may still struggle to find a routine that works for them months after commencing remote work.

It’s simply impossible to support a team based on a timetable. There’s every chance that no two employees will be at an identical stage of adaptation. This does require flexibility on a manager’s part, but it should be viewed as an opportunity.

Every instance of providing customized support to an employee is a learning experience, and the more involved you become, the easier it will be going forward.

For example, if an employee who has never appeared on video decides to switch their camera on, don’t immediately view it as cause to make a big deal out of it – that may be the last thing they want. Instead, follow-up with them to ask how they felt and understand if there’s anything else you can do to make them comfortable in the future.

Wrapping Up

While people are becoming more comfortable with Zoom, Teams, and other video meeting apps every day, their usage represents a colossal shakeup in work patterns. The key takeaways involve acceptance, support, and enabling people to progress at their own pace. Some people may never be truly comfortable with the concept, but it is only fair to do all you can to encourage them to reach their potential, just as you would do with any other aspect of their working life.

About the Author: Amy Deacon is a business coach and speaker who creates solutions for businesses seeking to change attitudes and routines to boost productivity throughout the workplace.

This blog is printed with permission.


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WHY IMMEDIATE AND LONG-TERM UNEMPLOYMENT REFORM IS A MATTER OF RACIAL AND GENDER JUSTICE

Posted on by Jenna Gerry
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The expanded pandemic unemployment programs have been a critical lifeline for tens of millions of workers during the pandemic, but their necessity and success highlight the gaping holes and longstanding inequities in an intentionally under-resourced unemployment insurance system.

Government has a responsibility to provide economic security for people, beyond times of crisis, and it has to listen and be accountable when people organize and advocate for needed reforms that grant this security. When the pandemic hit, the unemployment insurance system in the US was in dire need of immediate reforms that would address the needs of those most impacted. In March 2020, far too many jobless workers fell into a woefully neglected unemployment system that was ill-equipped to meet their needs. As a result, Congress passed temporary programs to address the biggest gaps in the program, including coverage for app-based and part-time workers and those with caregiving responsibilities, expanded benefit duration and increased weekly benefit amounts. And as a result of jobless workers organizing to hold their government accountable, Congress extended these crucial programs twice.

In 2021 alone, the unemployment insurance system has served as a vital lifeline for over 53 million workers and injected almost $800 billion into the economy. At the height of the pandemic, nearly 16 million workers simultaneously relied on these federal pandemic programs and would otherwise have been shut out of the unemployment program entirely. Now with these temporary programs ending on Labor Day, an estimated 7.5 million people will lose their unemployment benefits entirely.

The US labor market and unemployment insurance program were designed to prioritize white male workers. As a result, Black workers and other workers of color have faced racist hiring and firing practices, longer periods of unemployment, and over-representation among unemployment claimants.

Ending the temporary programs that addressed some of the gaps that kept Black unemployed workers and other jobless workers of color from acquiring unemployment insurance will have devastating impacts on these communities. Currently, Black workers experience 8.2 percent unemployment and Latinx workers experience 6.6 percent, compared to 4.8 percent unemployment for white workers.

Similarly, with the continued rise of the Delta variant as the federal programs end, people with generational caregiving responsibilities and school age children are left with impossible choices, and women who in particular do more care work, will be left with no support as they attempt to care for their families and return to work. Mothers across the country were forced from work to care for children and their ongoing caregiving responsibilities continue to stop them from being able to return to the labor force. The change in labor force participation is particularly dramatic for single mothers: by June 2021, the labor force participation rate of single mothers in their prime working years was still 5 percentage points lower than it had been in January 2020. The pandemic unemployment programs provided temporary support for these women, but with benefits expiring they again will be shut out of our outdated unemployment system that simply does not serve their needs.

Disabled and immunocompromised workers and their family members who are unable to return to work due to health and safety concerns will also face the same fate – being left with no support as delta surges. These workers faced some of the greatest challenges during this pandemic and our system should not shut them out, especially as emergency rooms and ICUs continue to be overwhelmed.

We cannot afford to continue to rely on temporary fixes that expire based on arbitrary dates rather than worker and economic needs. Rather, we must transform the unemployment insurance system to serve all workers at all times, whether the country is in a public health or economic crisis or not. As Congress enters the reconciliation process, we must continue to demand that elected leaders lay the groundwork for this transformation by enacting bold, structural UI reform including expanded coverage, increased minimum benefit duration and increased benefit amounts that are in line with basic living expenses. Without these measures, we cannot have an equitable recovery.

About the Author: Jenna Gerry, as a senior staff attorney with the National Employment Law Project, supports NELP’s efforts to end systemic racism in our social insurance system by providing legal and technical assistance to grassroots organizing groups and reformers to develop new worker informed and centered strategies to improve state and federal policies, build worker power, and improve jobless workers’ access to unemployment insurance Jenna is a proud member of the NELP Staff Association, NOLSW, UAW, LOCAL 2320.

This blog originally appeared at NELP on August 31, 2021. Reprinted with permission.


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How to Make the Building Trades Work for Women

Posted on by Mindy Isser
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The building trades unions are some of the most powerful in the labor movement. Because their members are well-paid, their dues are often higher than in other unions, giving them more resources to influence change. They also hold a certain cultural cachet, exemplifying what many people (wrongly) think the working class looks like: white men in hard hats. But this cachet is also part of the problem: These unions have been under fire for how white and male-dominated they are. Only 6% of the construction workforce is Black and, as of 2018, only 3% of workers in the construction industry were women.

While building trades unions are working to address these issues, tradeswomen say that making construction unions more accessible—and comfortable—for women is going to be a long process. They say it will require material improvements, like widespread maternity leave protections, as well as cultural shifts, like working to end sexual harassment. 

Ash Fritzsche is in year four of an apprenticeship program with International Brotherhood of Electrical Workers (IBEW) Local 98 in Philadelphia. She was working at a restaurant when some of her regular customers encouraged her to begin an apprenticeship in the building trades so she could have more job security and higher pay than in the food industry. Apprenticeships are not easy programs to get into: Fritzsche told In These Times that in her year, more than 1,000 people applied, but only fewer than 100 were accepted into this five-year program. Workers who complete apprenticeship programs are taught their craft while they work, earning a living while they complete the educational requirements and gain experience as electricians. To be accepted, workers must take an aptitude test and have an interview, which Fritzsche described as “killer, with seven guys at a roundtable asking you questions, it was so intimidating.” She struggled with knowing how to dress as a woman trying to break into the construction industry, having perused Reddit articles geared only towards men.

Fritzsche says her local accepted 10 women her year, contrasting with around three in years prior. She believes that allowing in more women helped with retention: “It allowed us to develop community. In previous years, at least one woman wouldn’t make it, but so far all 10 of us are still in and thriving and totally ambitious.” 

At Local 98, apprentices start out making 30% of what journeymen make, which for her was $18 per hour. Raises are applied every 1,000 to 2,000 hours, and health insurance kicks in after a couple of months. Fritzsche is in the final year of her five-year apprenticeship and now makes $38 per hour, the most money she’s ever made. She told In These Times that she’ll get another raise in October, “and I know it. It’s not like if I show up early for work and I do this or that, I might get it. It’s an automatic, earned raise, which is the way it should be.” For women workers who may face gender discrimination (including lower pay, fewer benefits and fewer opportunities to advance) at work, unions can and do even the playing field. 

Local 98 is working to recruit more women, and recently hosted a “Women in Construction” camp to teach more than 30 high-school aged young women about what union electrical work is like. But there is still work to be done. Because the building trades are so male-dominated, their unions are tailored to their members, who are primarily men. While benefits for unionized building trades workers are generous and desirable, most lack any kind of paid family leave—in our society, parental caretaking still falls primarily on women. This means that women may not see the building trades as a suitable career for them if they want to have a family. 

But the International Union of Painters and Allied Trades (IUPAT) is working hard to change this: In May, the union introduced a maternity leave program. According to Jessica Podhola, the director of communications and government affairs at District Council 3 at IUPAT in the Kansas City area, members have to belong to their local district council’s health and welfare fund, and to have worked 100 hours immediately before the benefit is applied to be eligible for it. The program includes wage replacement of 67% or $800 per week, and if members cannot work during pregnancy, they can receive up to six months of paid leave. For postpartum leave, workers receive either paid time off for six or eight weeks (if they had a C-section).

Podhola told In These Times that this maternity leave program is “a beginning, but it’s a strong beginning.” Others, meanwhile, are picking up the baton. According to Fritzsche, Local 98 is also working on this issue: She told In These Times that the local recently extended the cap on disability from $300 to $500 dollars a week, and it made an automatic disability clause for women in their 9th month of pregnancy and for the first six weeks postpartum (or eight weeks if they had a C-section). IBEW Local 48 in Oregon, meanwhile, introduced a new maternity leave program in January 2020, which offered workers 13 weeks of paid leave prior to birth and 13 weeks of paid leave after birth, which doubled the union’s previous benefit.

Podhola serves on IUPAT’s national women’s committee, which was built to develop policies to propel the union forward in protecting its women members. The committee has subcommittees on maternity leave, diversity and inclusion, recruitment, and marketing and retention. But along with the structural barriers for women in the trades, there’s also a cultural component that is difficult to fight: sexual harassment and other instances of sexism at work. Kelly Ireland, a plumber in Local 690 in Philadelphia, says “you walk through job sites and see graffiti about women. They say it’s a joke, but how many decades have we asked you to stop joking?” 

Unions are working on this, too. Ireland told In These Times that she knew of a man kicked off a job site for catcalling; the foreman fired him on the spot. And in addition to its new maternity leave policy, the IUPAT women’s committee is working on rolling out a sexual harassment training through their apprenticeship program. 

Podhola told In These Times that “changing the culture in construction is a long-term project. We are not going to be able to get it done overnight, but we can begin to create safer work spaces and frameworks for our sisters to address issues as they come up, and to begin laying the foundation for members regardless of gender about what is acceptable and what is not on a modern construction site.” 

Fritzsche’s experience has been similar during her apprenticeship. “You just watch some women burn out with the baloney they have to deal with. At the same time, the guys are incredible friends and mentors. I have so many male mentors. If you can work past issues around gender, you will have access to a wonderful world of friends, teachers, and mentors.”

According to Podhola, “Some of these guys have been doing this for 30 years and they’ve only worked with a woman a handful of times. It’s going to be a generational shift.” To make this shift happen, more women need to enter the trades. But it can be a vicious cycle: Women don’t see enough tradeswomen, so don’t see themselves as potential tradeswomen. 

Ireland, who grew up with a union plumber for a father, never even considered a future in the trades until she had her own family—mostly because she never saw women like her doing the work. “If I was young and saw women in the trades, I would have gone into ironwork, climb skyscrapers.” 

All of the tradeswomen who spoke to In These Times mentioned access as the largest barrier to bringing more women into the building trades: Women need to hear about these great jobs, understand that they’re just as welcome as men, and be given the confidence and tools both to apply and to stick it out when it gets difficult. Podhola says that “it’s on the onus of labor to market, recruit, and retain as many women as possible.” 

Workers say other solutions outside of marketing and recruitment could include more local women’s committees that prioritize and work directly on issues that affect women workers, putting more women on interview committees so women who apply for apprenticeships see themselves in their union and, of course, quotas and affirmative action for apprenticeships.

But ultimately, tradeswomen want other women to know that they belong in the trades. Fritzsche told In These Times that “women make great tradespeople. We are really good at this work and we deserve this work. A woman invented the circular saw. A woman invented the modern band saw. During World War II, we filled factories, we took over all the trades. We are tradespeople just as much as men are.”

About the Author: Mindy Isser works in the labor movement and lives in Philadelphia.

This blog originally appeared at In These Times on August 30, 2021. Reprinted with permission.


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How Businesses Can Prevent Workplace Injuries

Posted on by Workplace Fairness
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There are over 7 million work injuries each year that result in millions of dollars of medical payments and missed work time. And that’s just the reported injuries — we all know workers who don’t report incidents due to embarrassment, fear of consequences or lack of knowledge around their rights.

Employees should be safe at work and encouraged to report injuries without repercussions. Fortunately, there’s many things businesses can do to prevent workplace injuries and keep workers safe.

Here are some steps you can take and advocate for today.

Safe Materials Handling

We all want to be safe when we’re doing our jobs but unfortunately, some companies aren’t entirely honest about the materials involved or how safe they are.

Asbestos was a known problem for years but businesses covered up the risks to maintain their operations and profitability. This callous approach to others’ lives is inexcusable. So how can you protect yourself?

Almost everyone has access to a wealth of information about safety and materials simply by using the internet. Educate yourself and your coworkers about the materials you work with and how to handle them safely. You can advocate for specific personal protective equipment (PPE) or even take action against your employer if they’re exposing you to toxic materials.

Reasonable Work Hours

Most people understand that in manufacturing and other industries, overtime is sometimes required. However, you should never be required to work until you’re exhausted. Employees who are overtired or burnt out can make unsafe decisions and injure themselves or others.

If you feel like you’re burned out, don’t be shy about seeing a doctor. You can get a diagnosis related to how you feel, and it can impact what you need to do at work.

Advocate for reasonable work hours and talk to managers about the safety implications of overwork. By standing up for yourself and your coworkers, you can help create a safer environment for all.

Appropriate Safety Equipment and Signage

The Occupational Safety and Health Administration (OSHA) has specific rules for what kinds of safety equipment, notifications and signage workplaces must have. These apply to industries from healthcare to construction, agriculture, factories and even ships.

According to OSHA, the most common safety violations involve standards for:

  • Fall protection
  • Communication of hazards
  • Respiratory protection
  • Scaffolding requirements
  • Ladder requirements

Ensure that your workplace has appropriate safety equipment and training, and that you and your coworkers stick to them. When you do, you’ll be much safer. 

If you feel that your employer or workplace is violating a safety standard, let your boss or manager know immediately. If they don’t take action, you have the right to file a complaint with OSHA, which will begin an investigation.

You have the right to a safe and healthful workplace.

This post is printed with permission.

About the Author: Dan Matthews is a writer, content consultant and conservationist. While Dan writes on a variety of topics, he loves to focus on the topics that look inward on mankind that help to make the surrounding world a better place to reside. When Dan isn’t working on new content, you can find him with a coffee cup in one hand and searching for new music in the other.


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