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Workers Need Stronger Labor Laws Now More Than Ever

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Nearly 20 years after the publication of Kate Bronfenbrenner’s groundbreaking report on the state of organizing, she testified this week before Congress to preview new data showing that working people continue to face significant barriers in their efforts to form a union.

Her testimony was given during a hearing before the House Education and Labor Committee on corporate union-busting and removing barriers to organizing.

Bronfenbrenner’s testimony highlighted that while election win-rates have increased, the level of opposition workers face has intensified. Her analysis is further evidence for why we must pass the Protecting the Right to Organize (PRO) Act.

“Strengthening our labor laws has never been more urgent,” AFL-CIO President Liz Shuler said in response to the new data. “The working people who keep our economy going each day deserve the freedom to join or form a union without intimidation and fear.”

All workers deserve dignity and respect on the job.”

Approval of unions has reached 71%—the highest rate in nearly 60 years—and a significant portion of workers report that they would join a union if they could. Despite this unprecedented period of organizing, with millions of workers standing up nationwide to demand fairness on the job, the conditions that workers face have not changed much over the past two decades.

Bronfenbrenner’s findings show that a majority of companies still hire union-busting firms to deploy aggressive anti-union campaigns to thwart worker organizing.

Rates of retaliation, coercion, threats and intimidation remain inexcusably high: 

  • Eighty-five percent of employers used captive audience meetings while 71% used one-on-one meetings to harass workers. 
  • Forty-four percent interrogated workers about union activity. 
  • Forty-five percent threatened workers with plant closings, outsourcing or contracting out of their work.

The evolution of technology has allowed employers to introduce newer and so-called softer tactics to prevent organizing. Bronfenbrenner found that surveillance of workers has doubled and this includes monitoring through phones, computers key cards, social media and more.

Email communication has jumped from 3% to 43%, and employers now use text messages 18% of the time to contact workers with anti-union messages.

While this data primarily shows employer opposition only after workers have filed a petition with the National Labor Relations Board (NLRB), it does not reflect what workers know from lived experience—about how increased surveillance and other tactics are used by employers to mount anti-union campaigns even before a petition is filed.

These tactics continue to have a chilling effect on working people’s desire to organize and improve their workplaces. Workers have had to be more cautious in filing petitions for elections with the NLRB because employer misconduct so often precludes a fair election. 

And even when workers are successful in organizing by going through the NLRB election process, only 36% of elections result in a first contract within the first year while 44% still do not have a union contract within three years.

Without strong labor laws, workers will remain vulnerable to corporate abuse and overreach. Building a more equitable economy requires that employers be held accountable for violating workers’ rights.

This blog originally appeared on September 15, 2022 at AFL-CIO. Republished with permission.

About the Author: Julie Farb is a content contributor for AFL-CIO.

Visit Workplace Fairness’ page on unions to learn more about workers’ rights.


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

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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 2019immigrants 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, ‘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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Trucking Industry Laws Get Overhaul In Driver’s Favor

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While today’s trucking industry is highly regulated, the laws haven’t always been as favorable as truckers would like.

However, the industry recently saw an overhaul in many of its laws, giving drivers more protection than ever before. While COVID-19 was a major contributor to many changes, it was also high time that drivers were better protected.

The new laws apply to work hours, journey, and break times and were finalized in May after more than 8,000 public comments from stakeholders were received. The driving force behind the changes was an agency of the U.S. Department of Transportation, The Federal Motor Carrier Safety Administration (FMCSA). This Administration body has worked tirelessly for safer, more flexible working conditions.

The updated regulations include limitations and adjustments on the following:

  • Driving Hours

Regulations now state that truck drivers are not to drive for more than 11 hours per day, with a maximum of 14 working hours. The rule also applies to short-haul drivers. This came after backlash from electronic-logging devices that were introduced to ensure the safety of drivers. However, these devices had the opposite effect and saw truck drivers being more reckless in an attempt to beat the clock to their destinations.

  • Off-Duty Rest

Driving for extended periods can lead to driver fatigue. This reduces alertness on the road and is known to lead to an increase in accidents. Truck drivers are now only allowed to begin their next journey after taking a minimum of 10 consecutive hours of off-duty rest time.

This is to help prevent driver fatigue and restlessness, particularly on journeys home. All truck drivers are protected by this new rule and have welcomed it. It means that they can rest properly before embarking on their next long drive.

  • Extended Driving Window

In the event of encountering adverse conditions such as rain or snow, truck drivers are now allowed to extend their driving windows by up to two hours. This is another rule put in place to prevent drivers from speeding or driving recklessly to get to their destinations on time. It also allows for more flexibility, letting drivers decide whether or not they wish to stop or pull over if they deem the weather conditions unsafe to continue their journey.

  • Rest Periods

As per the updated regulations, truck drivers are entitled to a 30-minute rest period per eight consecutive driving hours. Previously, they were forced to take their rest period within these eight hours. However, many of them felt that this was disruptive and more counter-productive than beneficial as it broke their focus.

These rule changes are expected to save the US economy and American consumers a fair bit each year. It is estimated that approximately USD 274 million will be saved collectively due to the introduction of these rules. Larry Minor, the Associate Administrator for policy for the FMCSA, has said that the largest impact on the trucking industry, regarding the huge savings, is the shift in the 30-minute break requirement. The bulk of the $274 million savings comes from truck drivers’ added flexibility not having to be completely off duty when taking their break.

In the wake of the COVID-19 pandemic, the importance of long-haul trucking companies and drivers has been highlighted. They play an essential role in the US economy as a whole, and specifically within the country’s public health infrastructure.

As states begin to reopen and resume normal practices, truck deliveries are likely to increase significantly. With these rules in place, FMCSA hopes to afford truck drivers the flexibility they have been requesting over the past few months to increase safety measures as necessary.

This blog was reprinted with permission.

Author Bio: Lorie is a full time writer and editor with a background in logistics management and freight forwarding, covering a variety of topics and news within the industry.


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