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

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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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Surveillance, Stress, and No Bathrooms: Life as an Amazon Driver

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Part 2 of a series on Amazon’s delivery drivers. Part 1, “Building Its Own Delivery Network, Amazon Puts the Squeeze On Drivers,” is here.

The Amazonification of logistics has created a new group of highly exploited workers: delivery drivers. Amazon itself increasingly relies on an expanding network of subcontracted drivers and independent contractors to deliver packages to customers’ doors.

The working conditions facing Amazon’s last-mile drivers are defined by a frantic pace, low wages, and relentless pressure to meet tight delivery deadlines. Workers of color and immigrants are overrepresented, as they are in all the lowest-paying segments of last-mile logistics. 

When an Amazon Prime member orders an item, the first step in the delivery process begins at an Amazon Fulfillment Center, where the item is picked by a worker and put into a box, and an address label is created.

From there, the package is typically sent to an Amazon Sortation Center, where it is sorted. Then it’s sent either to the post office or, increasingly, to an Amazon Delivery Center, where Amazon’s subcontracted Delivery Service Provider (DSP) drivers pick up their routes.

Each Amazon Delivery Center typically contracts with 12–20 DSPs. Most of the drivers I spoke with said they usually have the same daily route. As the workday starts at the delivery center, hundreds of drivers pick up their “racks”: pallets of Prime packages. Any package that arrives at a delivery center must be delivered that day.

‘WATCHING ME DRIVE’

To get a sense of what work is like for these subcontracted drivers, I accompanied 30-year-old Miguel on some of his shifts throughout the Los Angeles region. Miguel is an undocumented immigrant; he was born in Mexico and migrated to the U.S. as a baby in the early 1990s. He grew up in L.A. and worked in fast food for 10 years before becoming a delivery driver.

Miguel typically works four 10-hour shifts each week, with an occasional opportunity for an extra day of overtime. He earns $15.50 per hour and receives no health benefits. While Amazon is not technically his employer, Miguel exclusively delivers Amazon Prime packages.

Miguel’s shift starts at 7:30 a.m., when he picks up his “bag.” A driver’s bag contains the keys to the delivery van and an Amazon “Rabbit” delivery device.

The Rabbit is an Android smartphone, which tracks the driver’s movements in real time and dictates each step of the delivery route. It provides information on each delivery, access codes to enter apartment buildings, and notes on where to leave packages.

The Rabbit also gives the driver information about the Prime customer (name, address, phone number) and the size of each package. As soon as a package is delivered, the driver must take a picture to prove it.

“The Rabbit stresses me out,” Miguel said. “I’m constantly staring at it and thinking someone at Amazon is constantly watching me drive.”

Once Miguel finds his van in the parking lot, he proceeds to the Amazon Delivery Center and waits for his rack. There’s a long line of other DSP drivers also waiting. Each rack has between 225 and 350 packages.

On one particular day I joined him, Miguel’s rack contained 227 packages, amounting to 161 stops. A driver typically puts all the small envelopes and packages up front in the cab and leaves the large boxes in the rear of the van. Since I was riding in the front seat, I had to hold dozens of small packages on my lap.

If drivers finish their shifts early, the DSP may assign them as “rescue drivers” to assist others who have fallen behind on their delivery routes.

CONSTANTLY RUSHING

“One thing that can be stressful is that my boss always knows exactly where I am because of the Rabbit,” Miguel told me. “So if I am behind on my route they tell me about it… They call me on the radio and tell me to hurry up.

“On most days, I don’t even have time to take a full lunch break, so I just go to a drive-through. And if I’m lucky I’ll just eat in the van as I am working… You are constantly rushing. You can’t find parking, or the Rabbit gets screwed up…

“I’ve also been accused of stealing packages, especially in rich white neighborhoods. They see a Hispanic driving around and think I am a package thief. My [company] will soon be giving us Amazon-branded uniforms and blue Amazon vans, which I’m happy about because that will help people realize that I am not a porch pirate…

“Also, I wish we got paid more. I think we deserve it. I work really hard and I don’t have health benefits, so if I get sick or hurt, I have to pay out of pocket.”

Miguel and many other drivers I interviewed emphasized that it is Amazon, not the DSPs, that needs to pay better wages.

Drivers described a physically demanding work environment. They feel pressured to drive at dangerous speeds, blow stop signs, and skip breaks and meals to meet the tight deadlines. Traffic and congestion stress them out. They also reported safety violations, wage theft, intimidation, favoritism, and a lack of overtime pay.

“I lost over 30 pounds since I started this job,” said Rogelio, a 26-year-old Latino driver. “This job takes a lot of running… I twisted my ankle stepping off a curb a couple months ago… it really slowed me down. I had to keep working though, but it was really swollen.”

Rogelio told me that he only stops to use the bathroom once per shift, usually at the same public toilet near a park along his route. “During Prime week,” Rogelio said, “I was way behind on my route. All I ate that day was a granola bar and an apple—for almost 11 hours! I hate Prime Day.”

‘ONE PACKAGE COST ME $150’

When a DSP driver fails to deliver a package, or even when a package is stolen from the doorstep of a customer’s home, Amazon contacts the DSP with what drivers call a “concession.”

Concessions occur when Amazon Prime members submit a complaint to Amazon over a missed delivery. When a concession is issued, the individual driver is reprimanded by a superior.

Alex is a 37-year-old Latino driver who has been working for his DSP for 10 months. He told me, “Amazon put a concession on me a few months after I started. My boss called me in, and he asked why I didn’t take a picture of the package that disappeared. I told him that I did, but for some reason it didn’t get logged by the Rabbit. I was written up [by my boss] and he took away one of my shifts that week as punishment. That one package cost me 150 bucks.

“For the next few weeks, my boss tightened the screws on me… He was always on me, calling and texting me to hurry up… When an item gets stolen, they blame the drivers.”

“Here’s the thing,” Justin, a Filipino driver, told me. “I’m 42 years old. I have four kids and I make $15 an hour. I get about $1,250 every two weeks. That’s not enough to make it out here in LA. If I didn’t have a family, I’d leave this area.

“I basically do the same work as a UPS driver, but those guys get paid double what I earn, at least. We don’t have representation with any union. So that’s why I take as much overtime as possible, my boss knows I’ll take any extra work—but it’s a really tiring job at times.”

This blog originally appeared at Labor Notes on February 9, 2021. Reprinted with permission.

About the Author: Jake Alimahomed-Wilson is a sociology professor at Cal State-Long Beach. He is the co-editor, with Ellen Reese, of The Cost of Free Shipping: Amazon in the Global Economy (Pluto Press, 2020). This piece is an edited excerpt from the book. 


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People of the State of California v. Uber & Lyft

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NELP and other workers’ rights advocates urge court to stop Uber and Lyft’s independent contractor misclassification.

On July 17, 2020, NELP, in collaboration with Legal Aid at Work and other California-based workers’ rights organizations, urged the San Francisco Superior Court of California to stop Uber and Lyft’s illegal misclassification of their drivers as independent contractors.

Though they proudly wear the label of innovative “technology” companies, Uber and Lyft are no different than any other company that routinely violates labor and employment laws to boost its profits at the expense of its workers.

By misclassifying their hundreds of thousands of drivers as independent contractors, Uber and Lyft dispossess their workers of basic labor protections, such as minimum wage, overtime pay, workers’ compensation, unemployment and state disability insurance, and other critical rights intended to cover most workers in our society.

Calling a driver an “independent contractor” does not make it so, and managing employees through an online application does not transform them into self-employed entrepreneurs. Drivers for Uber and Lyft are not running their own separate businesses; they are integral to the companies’ businesses. They are Uber and Lyft’s employees.

Misclassification is not unique to app-based employers—it occurs in every industry where a company might feel the itch to cut corners and boost profits. But in Silicon Valley, the practice has its peculiarities. Companies like Uber and Lyft have flourished in a venture capital fever dream in which regulations are disrupted and the dignity of human labor processed via algorithm and code. Through their gospel of “flexible work,” Uber and Lyft have taken an illegal practice familiar to bad employers everywhere and turned it into the “future of work.”

As described in the amici brief, by subverting labor laws and disabling industry regulations, the two companies have been able to steal wages, duck accountability, offload risk, sabotage worker power, and worsen income and wealth inequality.

Driving for Uber and Lyft must be seen for what it really is: Employment for a company that unilaterally dictates the material terms of work for people who are not running their own business.

NELP urges the San Francisco Superior Court of California to correctly enforce state law, so that drivers for Uber and Lyft, already providing the core transportation service for the companies, may access their employee rights under California law.

This blog originally appeared at NELP on July 20, 2020. Reprinted with permission.

About the Author: Brian Chen is a Staff Attorney at the National Employment Law Project. He primarily focuses on building power for workers who are exploited in “nontraditional” work structures, such as independent contractors, temp, and gig workers. Through litigation and policy campaigns, he aims to support workers’ efforts to democratically self-determine their material conditions.


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Trump’s administration considers rule that would make it easier for businesses to exploit workers

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The U.S. Department of Labor plans to propose a rule that would reexamine worker classification, redefining who is given certain labor protections and who is not.

The boom of the so-called gig economy — as seen in ridesharing apps like Uber and Lyft and others like TaskRabbit and DoorDash — have raised questions about whether people providing these services should be classified as entrepreneurs or as workers.

Paul Secunda, professor of law at Marquette University, said the motivation for an employer-friendly Department of Labor to explore worker classification is very clear.

“Obviously employers want as many workers as possible to be independent contractors for the reasons that they don’t have to pay benefits, they are not subject to employment laws, and are at a real disadvantage bargaining with their employers,” Secunda said.

Secunda said such a rule would have profound effects on workers.

“It almost comes across as arcane and who cares? But if you can’t be considered to be an employee then all these laws are beyond your reach. You can’t organize. You can’t get minimum wage or overtime. You can’t get the protections of employment discrimination law. You can’t get consumer protections when it comes to pensions and health insurance. It’s really damaging. Those in the Trump administration, who are pro-business in a way that I don’t know we’ve ever seen before, are focused on it as a way to make it less expensive for these large companies to have labor and not pay for it.”

Bloomberg Law broke the news that the department would be looking at the issue after a spokeswoman told the outlet it will update the joint employer rule and then look at worker classification.

There are different tests and factors to determine whether a worker is an employee or contractor. The National Labor Relations Act uses what is known as a common law definition based on how much control the employer has over the worker, including factors such as bringing your own tools to a job, whether you get a W-2 or Form 1099, and how much direction you receive on how to provide the service or product.

Under the Fair Labor Standards Act, which the Labor Department administers and enforces, there is an economic realities test that asks how dependent someone is on the employer in question. The more dependent the person is, the more likely that person is an employee and not an independent contractor.

In January, the National Labor Relations Board (NLRB) ruled that the transportation service SuperShuttle was correct to call its airport van drivers contractors instead of employees. The NLRB said it was considered entrepreneurial opportunity since workers set their own schedules and have their own work vans.

Secunda said the ruling was a “radical departure” from the common law definition of employee that has been used under the NLRA for decades.

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“They’ve added a new factor called entrepreneurial opportunity which is nowhere to be found in any of the list of factors I’ve ever seen for the common law control. You could argue that some of these factors hint at such entrepreneurial control but it’s never been either discussed as the centerpiece of the test as it was in the SuperShuttle case nor has so much emphasis been put on it as it was in the SuperShuttle case,” Secunda said. “It is not just happenstance that this case was decided by the NLRB and then in the regulatory agenda you see the Department of Labor is thinking of trying to eventually change the definition or factor test in a way that is not surprisingly going to favor employers.”

One in five Americans is a contract worker, so the debate over who is an employee or contractor will only grow in importance. People who are considered freelancers, on-call workers, temp agency workers, and contractors increased from 10.5 percent to 15.8 percent between 2005 and 2015, according to Harvard and Princeton economists.

“It’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited.”

Many of these workers have pursued lawsuits in the past few years. A part-time driver sued Grubhub in 2015 and argued that he that was entitled to minimum wage, overtime pay, and reimbursement of expenses, since the company had a lot of control over his schedule. But last year, a U.S. District Court judge disagreed and said that because he never went through training, wore a uniform, or received performance evaluations, he wasn’t a traditional employee.

A federal judge ruled last year that Uber doesn’t have enough control over Uber Black, a limo service, to be considered an employer under the FLSA, since drivers are free to run personal errands, take naps, and smoke cigarettes between rides. In 2017, DoorDash, a food delivery company, reached a settlement with workers after they said they were misclassified as independent contractors. Although the agreement provided more protections for workers and clearer policies, it did not result in a change in worker status.

The online gig economy is “growing rapidly,” economists Seth D. Harris and Alan Krueger explain in a 2015 report on the modernizing labor laws. Harris and Krueger propose that there be a new legal category of workers called independent workers for people like Lyft drivers, who are neither traditional employees or independent contractors, since they have similarities to both categories. Although they can, in theory, choose when and whether to work, there are restrictions imposed by the company on how much they can charge customers. They suggest “extending many of the legal benefits and protections found in employment relationships to independent workers.”

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.

This article was originally published at ThinkProgress on February 6, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering education and labor issues. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.


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Trump labor board declares open season on ‘independent contractors’ this week in the war on workers

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The Donald Trump-appointed National Labor Relations Board dealt a major blow last week to workers being exploited by companies misclassifying them as independent contractors. Whether a worker is an employee has long been determined by a number of factors, including how much control the employer exerts over things like work hours and conditions. The NLRB, though, looked at SuperShuttle drivers in Dallas-Fort Worth who have to buy the exact van that SuperShuttle wants, pay a series of fees to SuperShuttle, use company dispatchers, and be monitored by SuperShuttle GPS tracking, and decided that they are legitimately independent contractors and not employees because something something “entrepreneurial opportunity.” Moshe Marvit has the gory details:

Throughout the Board majority’s decision, it becomes clear that when it uses the language of “freedom” and “entrepreneurial opportunity,” it is the freedom to fail and the opportunity to lose. Reading the decision, one is struck by the lack of any evidence that the drivers—or “franchisees” in the language of the case—do well under the agreement. Instead, the Board majority approvingly cites the NLRB Acting Regional Director who made the first determination in the case, in which she found that “franchisees face a meaningful risk of loss in light of the substantial costs that go into owning a franchise, i.e. the vehicle payments, weekly system fees, insurance costs, gas, maintenance, licensing fees, and tolls.” The Board methodically goes through every instance where the company has offloaded costs and risks to the drivers, while maintaining strict control, and calls the new relationship one where the drivers are small business owners, experiencing freedom and entrepreneurial opportunity.

Basically the NLRB served notice that there may be no employment relationship so exploitative that it declines to affirm it as independent contracting.

This blog was originally published at Daily Kos on February 2, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.


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L.A. Port Strike Today Over Federal Contractor Wage Theft

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dave.johnson

 

“An order that creates a culture of legal compliance could have a transformative impact on American industry.” George Faraday, Legal and Policy Director at Good Jobs Nation

 

Truck drivers and warehouse workers working for federal contractors at the Port of Los Angeles are striking for 48 hours to draw attention to wage theft and other violations. These workers work for companies that contract with the federal Department of Defense. They say they have been misclassified as “independent contractors”, had their wages stolen and have been retaliated against for exercising the right to organize.

The workers are doing this because President Obama’s Fair Pay & Safe Workplaces Executive Order protecting low-wage workers on federal contracts from wage theft and other labor law violations takes effect today. Contractors are supposed to start reporting whether they are found in violation of wage theft and other labor laws and regulations. Later the government can use this information in the decision process for awarding contracts.

On a press call discussing today’s strike, Jaime Martinez, a port worker, explained that he has worked for K&R, a federal contractor, for 19 years. “We are on strike today for issues including respect and and wage theft. We earn very low wages, with no benefits and no workers compensation because we are classified as independent contractors.”

Obama’s Fair Pay and Safe Workplaces Executive Order

July’s post, Obama’s ‘Fair Pay and Safe Workplaces Executive Order’ explained,

President Obama’s executive order cracks down on federal contractors who break hiring, health and safety, and wage laws. It also prohibits employers from requiring mandatory arbitration agreements with employees of federal contractors, in order that workers can get their day in an actual court instead of being forced to appear in front of an arbitrator picked and paid for by the company when there is a dispute involving the Civil Rights Act or related to sexual assault or harassment.

Specifically, the new rules require companies that bid on federal contracts to disclose wage and hour, safety and health, collective bargaining, family and medical leave, and civil rights violations from the prior three years. Federal contractor hiring officers are to take serious violations into account before awarding contracts. These officers will be issued guidelines on whether certain violations “rise to the level of a lack of integrity or business ethics.”

This Is A Big Deal

According to Good Jobs Nation this will affect a large number of workers around the country,

  • A U.S. Senate investigation revealed that federal contractors were responsible for nearly one-third of the largest U.S. Department of Labor penalties for wage theft and other legal violations;
  • A report by the National Employment Law Project found that 1 in 3 low-wage federal contract workers are victims of wage theft; and
  • An analysis by the Government Accountability Office showed that known legal violators have continued to receive lucrative federal contracts because of lax government oversight and enforcement.

“Creates A Culture Of Legal Compliance”

Companies with federal government contracts employ 1 in 4 American workers. Thanks to this executive order they will have to demonstrate a record of labor law compliance, including wage and hour and health and safety laws. On the press call discussing today’s strike Good Jobs Nation’s Legal and Policy Director George Faraday said, “An order that creates a culture of legal compliance could have a transformative impact on American industry.”

Fair Pay Hotline And Website

Also today, Good Jobs Nation is launching the first-ever national legal hotline – 1-844-PAY-FAIR – for federal contract workers to report law-breaking. Information is also available at goodjobsnation.org/payfair,

If you are a worker on a federal contract and you believe that are not receiving the pay and benefits owed to you under federal laws – like the Service Contract Act or the Davis Bacon Act – contact Good Jobs Legal Defense at 1-844-PAY-FAIR or click below.

This post originally appeared on ourfuture.org on October 25, 2016. Reprinted with Permission.

Dave Johnson has more than 20 years of technology industry experience. His earlier career included technical positions, including video game design at Atari and Imagic. He was a pioneer in design and development of productivity and educational applications of personal computers. More recently he helped co-found a company developing desktop systems to validate carbon trading in the US.

 


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Seattle City Council Votes That Uber and Lyft Drivers Can Unionize

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LauraClawsonCompanies like Uber and Lyft consider their drivers to be “independent contractors,” which is all about freedom—specifically, the company’s freedom to not pay for things like workers comp, unemployment, or even the minimum wage. That’s a system facing significant court challenges in some places, and now another form of challenge in Seattle. The Seattle City Council on Monday night passed a bill giving drivers union rights.

Under the bill passed Monday, “for-hire drivers” would be legally entitled to seek out “exclusive driver representatives” for the purpose of collective bargaining — i.e., labor unions. If a majority of drivers at a particular company designate a union as their representative, then by law the company will have to bargain with the union within the city of Seattle.

The law has implications well beyond Uber and Lyft. Many traditional taxi drivers are classified as independent contractors as well, and would have new rights under the law.

At least, they would if the law ever goes into effect. Uber and others in the industry are expected to challenge the law in two possible ways: by claiming that it conflicts with federal labor law, and by arguing that it runs afoul of antitrust law.

Seattle Mayor Ed Murray said he won’t sign the law, but he can’t block it. Despite the delays the law will face thanks to legal challenges, the pressure is growing—on multiple fronts—for Uber and Lyft and other gig economy companies to quit using the weakness of American labor law to exploit their workers.

This blog originally appeared in DailyKOS.com on December 15, 2015. Reprinted with permission.

About the Author: Laura Clawson has been a Daily Kos contributing editor since December 2006  and Labor editor since 2011.


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Why the Sharing Economy is Hurting the Economy – and What Must Be Done

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Robert ReichIn this holiday season it’s especially appropriate to acknowledge how many Americans don’t have steady work.

The so-called “share economy” includes independent contractors, temporary workers, the self-employed, part-timers, freelancers, and free agents. Most file 1099s rather than W2s, for tax purposes.

It’s estimated that in five years over 40 percent of the American labor force will be in such uncertain work; in a decade, most of us.

Already two-thirds of American workers are living paycheck to paycheck.

This trend shifts all economic risks onto workers. A downturn in demand, or sudden change in consumer needs, or a personal injury or sickness, can make it impossible to pay the bills.

It eliminates labor protections such as the minimum wage, worker safety, family and medical leave, and overtime.

And it ends employer-financed insurance – Social Security, workers’ compensation, unemployment benefits, and employer-provided health insurance under the Affordable Care Act.

No wonder, according to polls, almost a quarter of American workers worry they won’t be earning enough in the future. That’s up from 15 percent a decade ago.

Such uncertainty can be hard on families, too. Children of parents working unpredictable schedules or outside standard daytime working hours are likely to have lower cognitive skills and more behavioral problems, according to new research.

What to do?

Courts are overflowing with lawsuits over whether companies have misclassified “employees” as “independent contractors,” resulting in a profusion of criteria and definitions.

We should aim instead for simplicity: Whoever pays more than half of someone’s income, or provides more than half their working hours should be responsible for all the labor protections and insurance an employee is entitled to.

In addition, to restore some certainty to people’s lives, we need to move away from unemployment insurance and toward income insurance.

Say, for example, your monthly income dips more than 50 percent below the average monthly income you’ve received from all the jobs you’ve taken over the preceding five years. With income insurance, you’d automatically receive half the difference for up to a year.

It’s possible to have a flexible economy and also provide workers some minimal level of security.

A decent society requires no less.

This blog was posted at RobertReich.org at November 23, 2015. Reprinted with permission.

About the Author: Robert B. Reich, Chancellor’s Professor of Public Policy at the University of California at Berkeley and Senior Fellow at the Blum Center for Developing Economies, was Secretary of Labor in the Clinton administration. Time Magazine named him one of the ten most effective cabinet secretaries of the twentieth century.


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DOL Decision Could Mean the End of Wage Theft Through “Independent Contractor” Misclassification

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David MobergAre you an employee?

It seems like a simple question that must have a simple answer for most people. But definitions in different laws and rulings enforcing the laws vary. And that variation provides an opening for a growing number of employers to cheat governments of taxes and workers of income, benefits and protections by misclassifying their employees, especially as “independent contractors.”

Last week, the administrator of the Department of Labor’s Wage and Hour Division, David Weil, released a “letter of guidance” that clarifies who is an employee and who is an “independent contractor”—that is, essentially an individual running his or her own business. He argues that the most definitive statement from Congress comes from the Fair Labor Standards Act, which says that “to employ” means “to suffer or permit to work.” And, he concludes, “under the Act, most workers are employees.”

The decision is “incredibly important,” says Catherine Ruckelshaus, general counsel and program director of the National Employment Law Project (NELP), a pro-worker nonprofit organization, and may help to clear up confusion in the courts and encourage more enforcement of the law.

In recent years, many companies—from 10 percent to 30 percent or more of employers—employ at least several million people who are misclassified as independent contractors, according to a recent NELP report. They even go so far as to require workers to form a limited liability corporation or franchise (with themselves as the one and only participant) or to sign contracts declaring that they are independent contractors. According to another study from economist Jeffrey Eisenach of George Mason University, the number of independent contractors rose by one million from 2005 to 2010, including both fake and real contractors (often unemployed workers who re-label themselves as “consultants”).

One high-profile example is the Federal Express delivery driver—who wears a FedEx uniform, drives a company truck, follows a route set by the company and still is treated as a contractor. Weil’s ruling may also tip the judgment against companies like the Uber taxi service, increasingly targeted in lawsuits as improperly treating its drivers as independent contractors.

When employers misclassify workers, they often pay less for contractors, but most important, the workers lose a wide range of protections and benefits under the law such as unemployment compensation, workers’ compensation, minimum wage and overtime regulations, and governments lose billions of dollars a year in taxes that support those programs.

In his recent book The Fissured Workplace, Weil argues that workplace phenomena like subcontracting, using independent contractors, franchising and other ways to make employers less responsible for their employees is not just a result of competition driving down costs, whether as a result of globalization, weakening of unions, new technologies or new work processes, but also “pressure from public and private capital markets to improve returns.”

Unlike the “common law” test for who is an employer, which emphasizes the degree of control over one’s work, the FLSA standard usually relies on an “economic realities” test, which examines many different dimensions of work without favoring one above all others. But in his guidance letter, Weil writes, “the ultimate inquiry under the FLSA is whether the worker is economically dependent on the employer or truly in business for him or herself.” But the varied economic realities tested include such questions as how integral the worker is to the business, how much does managerial skill affect possible profit or loss, how big is the worker’s relative investment, does the worker’s success rely on special business skills in addition to any technical skills, what kind of control does the employer exercise, or how permanent is the relation of the worker to the employer.

The impact of this guidance letter may first be felt in courtrooms and in various federal or state agencies, but Ruckelshaus hopes that employers will voluntarily take it seriously. More likely, it will only be quite meaningful if there are systematic state and federal efforts to audit employer behavior, especially in industries where abuses are common, such as lower-skill construction, home care and janitorial work. Unions are also in a position to push for more vigorous enforcement, as Ruckelshaus said the Carpenters have been.

And when it is clear that the workers are not contractors but employees, the unions can do the workers a favor and invite them to join the union.

This blog was originally posted on In These Times on July 22, 2015. Reprinted with permission.

About the Author: The author’s name is David Moberg. David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy. He can be reached at davidmoberg@inthesetimes.com.


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The End of Jobs?

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sarah jaffeIn a major victory for a long-running campaign,  port truck drivers at Pacific 9 Transportation in California have won the right to be considered employees under the National Labor Relations Act, and to form a union.

That ruling, by Region 21 of the National Labor Relations Board, that the truckers had been misclassified as “independent contractors”   comes after months of sustained actions, including strikes, by port truckers.  It comes in an industry where union jobs were the standard until deregulation turned all workers into “free agents.” Free agency, they quickly found, didn’t come with much freedom, as they still had their hours and working conditions dictated by the company for whom they worked–but it came with a price tag. The cost of gas, truck maintenance and licenses landed on their shoulders instead of their employers’.

It’s in this context that I’m thinking about the “end of jobs as we know them.”

This Wednesday I attended a conference with that provocative title at the Open Society Foundation, and I’ve long been mulling the idea.

In 2011, I wrote at AlterNet that a future beyond jobs, where we all work less, used to be a major goal of the U.S. labor movement. More freedom, less production for its own sake, would actually create a more sustainable world. (Alyssa Battistoni compellingly made this argument recently at Jacobin.) Lowering the amount of hours worked by each person would help distribute jobs better among the people who still don’t have them, as economist Dean Baker has repeatedly argued.

But I noted that moving beyond jobs would necessitate tackling issues of inequality and concentration of power in the hands of the wealthy. At the moment, the “end of jobs” has meant sustained high unemployment and low wages, not more freedom. The disappearance of jobs in America has as much to do with the power of global capital to move where and when it wants and the ability, post-crisis, of businesses to squeeze more and more productivity out of the few workers they keep, as it does with technology making certain professions obsolete. And the rise of the “free agent” worker has at least as much to do with the desire of businesses to have an easy-hire, easy-fire, just-in-time workforce (as I wrote about in some detail recently) that absorbs—as the port truckers do—most of the labor costs, as it does with workers who simply enjoy the freedom of not having a boss. Power is as big or bigger a force as technology in shaping the labor landscape today.

Fast forward to 2014. The economy has improved only slightly. Unemployment remains high, and the jobs that do exist are often low-wage and part-time. Since 2011, we’ve seen not only Occupy but the rise of a movement of Walmart and fast-food workers demanding better wages and, often, more hours, so they can take home a full-time paycheck. A shorter hours movement has not materialized, nor has a meaningful jobs program, despite the promises of a bipartisan clutch of politicians. The minimum wage has risen in some states and cities, but workers are still struggling, and the long-term unemployed have seen their benefits cut off by a Congress that continues to squabble about whether or not they deserve to be able to pay bills.

Jobs have not yet ended or become obsolete. Yet, without question, they are changing. Research from Kelly Services (which, being a temporary agency, certainly has a vested interest in the subject) finds that 44 percent of workers in the U.S. classify themselves as “free agents.” According to the Freelancers Union, 42 million people are freelancers. The full-time job itself is only a fairly recent development in human history, spanning a couple hundred years or so, and the attendant expectation that a job be “good,” paying a living wage and providing healthcare and retirement benefits, with a union and some security, is a peculiar historical development of the New Deal era in the United States—an era that is almost without question over.

Power created that era—the power of organized workers in unions demanding better conditions. But the bosses, it’s worth noting, never stopped trying to dismantle the deal. Since the Taft-Hartley Labor Management Relations Act of 1947, conservatives have been pushing to limit the power workers were granted by the NLRA in 1935, and the conversion of decent jobs into no-security temp gigs should rightly be seen in that context. The port truck drivers at Pacific 9 and elsewhere realize that despite the promises of freedom and liberation, they have more power when their relationship with the boss is explicit and when they can come together as a union.

We should carefully consider what comes next, whether that be high-end freelancers hopping from gig to gig, disdaining a full-time job, or more likely, the further fragmentation into piecework that we see happening in digital spaces like Amazon’s Mechanical Turk, and the conversion of formerly full-time union jobs such as port trucking or auto manufacturing into low-security independent contracting or temp labor. Moshe Marvit wrote at The Nation of Amazon’s human “crowdworkers” who perform the tiny tasks that are “helping to power the parts of the Internet that most of us take for granted” and who are paid a pittance for their work.

Technology is often blamed for displacing workers and eliminating jobs. Those doing the blaming are sometimes correct, as when supermarkets move to automatic checkout or ports move to automated cargo hauling. And yet the story of the Mechanical Turkers is a good cautionary tale for those who assume that all jobs are disappearing into the mechanical ether. One doesn’t have to be a Luddite to point out that many jobs—including ones, like those done by Turkers, that we think are fully automated—are still being done by people, either because we don’t have the technology to do them yet, or because those people remain cheaper than machines. Whether jobs are disappearing for good reasons—because they simply aren’t socially necessary anymore—or because they are being fragmented, made temporary or shifted to freelancers, these are not processes that are happening outside of human control, but rather because of it.

Carl Benedikt Frey of the Oxford Martin Programme on the Impacts of Future Technology was a keynote speaker at Wednesday’s event. His recent study, with Michael Osborne, found that nearly half of U.S. jobs are “at risk of computerization.” These include positions in a wide variety of sectors, from transportation to the service industry.

The positions that are least likely to be automated, this study found, were those that relied on “creative and social intelligence”—for example, preschool teaching. It concludes, “For workers to win the race, however, they will have to acquire creative and social skills.”

What is social intelligence but another word for what sociologist Arlie Russell Hochschild called “emotional labor”? And that emotional labor has been devalued and indeed not considered a skill at all, largely because it has been done by women. One study found that “interactive service jobs,” which include care work and service work, get paid less even if you control for education levels, rate of unionization, cognitive and physical skill, and the amount of women doing the job.

If those social-skilled jobs are the only ones that will be left to us, will we learn to value them more? Or will this just be another excuse to pay workers less? The question, like the question of what is a skill in the first place, is one of power.

The end of jobs doesn’t have to be a dystopian nightmare. There is some truth to the rosy picture painted by Kelly Services about the “free agent” workforce. I once left a full-time job to be a freelancer, and I enjoyed the experience: writing for a variety of outlets, learning from new editors, sharpening different styles, working when I wanted. The pleasure came to a grinding halt, though, when a client who owed me what amounted to more than two months of my rent didn’t pay for several months, and I had few other financial options. I needed a way to pay the bills if the work didn’t come through, and our current so-called social safety net didn’t offer one. It remains designed, as Sara Horowitz of the Freelancers’ Union points out, for a workforce that has full-time jobs with benefits. And that was never everyone, to begin with.

Women, black workers and immigrants were mostly left out of that design in the first place; what’s happened is that the conditions in the sectors where they typically work (temporary work, no labor protections, informal workplaces) have caught up with the rest of us. This means instead of clinging to a safety net that was designed for white male breadwinners in manufacturing jobs, we need a system designed for workers who are doing less work, doing it from home or the neighborhood coffee shop, and where the human resource in demand is care as much as it is cognitive skill or brute strength.

The subject of a universal basic income is coming up a lot these days; former Labor Secretary Robert Reich endorsed it last week in a talk at San Francisco State University, calling it “almost inevitable” in the face of technologically-induced job loss. A basic income would serve as something more than a safety net in troubled times—it would be a firm line below which no one, employed or unemployed, skilled or unskilled, could fall. Perhaps most importantly, it would help workers who do retain jobs (or gigs) increase their bargaining power by giving them the option of leaving rather than clinging to a job out of desperation.

That’s a large redistribution of income, of course, and it will take a lot of political power to make such a thing a reality. Political power for working people has come in the past and will come in the future through worker organizing—particularly, as has been the case with the port truckers, organizing outside of the old NLRB framework. It took workers coming together to challenge their bosses’ idea of “freedom” to win fair pay at the ports, and it will take workers coming together on a massive scale to really get workers some freedom.

Along with that idea of freedom, it’s time to consider a call for shorter working hours—a redistribution of work and leisure to go along with the redistribution of wealth. There will always to be some work that cannot be automated away, and much of that work, as Frey and Osborne found, will likely rely on social skills that have been presumed to be women’s domain. If we don’t want a world where women do most or all of the work for little pay, we’ll have to start valuing those social skills more, and ensuring that the jobs that requires them are done by all.

But most importantly, we should be working to ensure that a future without jobs is a future where we all get to enjoy the benefits of free time.

This article was originally printed on Working in These Times on March 21, 2014.  Reprinted with permission.

About the Author: Sarah Jaffe is a staff writer at In These Times and the co-host of Dissent magazine’s Belabored podcast. Her writings on labor, social movements, gender, media, and student debt have been published in The Atlantic, The Nation, The American Prospect, AlterNet, and many other publications, and she is a regular commentator for radio and television.


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