Gig Worker Organizers Still Looking for Road Map

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By Chris Opfer

Labor advocates are considering a variety of ways to give gig workers a voice on the job, while a judge in Seattle decides whether Uber and Lyft drivers can unionize the old-fashioned way.

Representatives from a number of New York-based unions May 25 discussed gig worker organizing options, including new legislative proposals and opportunities under existing laws. One of the ongoing debates is over whether to give up some ground on getting gig workers classified as traditional employees in exchange for at least some power to organize them.

“Labor unions are kind of split, and they certainly don’t have a single voice on how to deal with this and how to create an organizing model that makes sense,” Barry Broad, who lobbies for the Teamsters and other unions in California, told Bloomberg BNA.

A Seattle ordinance allowing ride-share drivers to join unions is currently on hold, pending a lawsuit by the U.S. Chamber of Commerce.

In the meantime, organizers are considering quasi-union models for independent contractors, who are largely believed to fall outside of federal laws guaranteeing the right to form a traditional union. That includes talk of an industrywide oversight board with the power to audit sharing-economy businesses and negotiate certain terms and conditions.

On-demand and sharing-economy gig workers are typically classified as independent contractors for tax and employment purposes. That means they’re treated as self-employed entrepreneurs who are generally not entitled to overtime, minimum wage, workers’ compensation, and unemployment insurance protections. Antitrust laws also limit their ability to band together for bargaining purposes.

Antitrust in the Way

The problem for would-be gig worker unions is that independent contractors aren’t covered by the National Labor Relations Act, the eight-decade-old law establishing employees’ right to band together for collective bargaining purposes.

“It’s clear that independent contractors can’t unionize,” Ronald Meisburg, a former National Labor Relations Board member and general counsel, told Bloomberg BNA. “The question of whether a gig worker is an independent contractor is very fact-intensive.”

That question is currently being debated in courtrooms across the country, where Uber and Lyft drivers have argued they should be considered traditional employees because of the control the companies exercise over how they do their jobs. Similar questions have also come up for Instacart personal grocery shoppers, Postmates food deliverers, and home cleaning and repair service providers linked with customers through online platforms such as TaskRabbit and Handy.

In the meantime, federal antitrust law bans on price-fixing and other forms of collusion among independent businesses arguably extend to collective bargaining by independent contractors treated as self-employed entrepreneurs.

“If you’ve got a bunch of independent contractor businesses all getting together to fix prices among them, it could raise antitrust issues,” said Meisburg, now a management-side attorney for Hunton & Williams.

Antitrust law exempts traditional labor organizations covered by the NLRA in bargaining on behalf of the workers they represent.

Taxi Commission Model

The Independent Drivers Guild is already trying to fill some of the void for Uber drivers in New York. The guild is funded by Uber and works in partnership with the International Association of Machinists.

The guild has its limits, most notably that it doesn’t have a legal right to collectively bargain on behalf of its members. The guild has, however, notched a couple of wins by establishing an appeals system for drivers kicked off of the Uber platform and convincing the ride-sharing giant to scrap a policy that required luxury vehicle drivers to also pick up lower-paying fares.

The New York Taxi and Limousine Commission, which licenses taxicab and for-hire drivers and regulates the industry throughout the city, is seen by some labor leaders as a possible model for on-demand workers across different platforms. One idea is to push lawmakers to establish a similar commission for gig workers, funded by a per-gig or per-task surcharge, with the power to set certain basic worker standards.

On-demand employers have expressed some interest in supporting workers, including through proposals for portable benefits systems allowing multiple employers to kick into the same plan for workers with more than one job. Several have made clear that they want to keep the limited liability that comes with gig workers continuing to be classified as contractors.

A draft bill backed by Handy, Instacart, TaskRabbit, Postmates, GrubHub and other on-demand businesses that’s floating around the New York state legislature, for example, would expand the legal definition of “independent contractor” in exchange for creating a portable benefits system. That kind of deal is a non-starter for some labor groups.

“In return for some type of right to represent these workers, we’re not going to support any legislation that would give employers a safe harbor from misclassification challenges,” Broad, the California Teamsters lobbyist, told Bloomberg BNA.

‘Unchartered Territory’

The Seattle ordinance, which the city council approved unanimously late last year, would allow for-hire drivers like those working through the Uber and Lyft platforms to unionize, regardless of their contractor status. It would also force ride-share businesses to negotiate with unions over drivers’ pay and other terms and conditions.

“We’ve got an industry that is on the one hand evolving rapidly and creating new opportunities that couldn’t exist before,” Mike O’Brien, a member of the Seattle City Council, told Bloomberg BNA. “At the same time, they’re employing some really old school worker exploitation tactics.”

The Chamber and Uber subsidiary Rasier LLC last month won a temporary injunction to put the law on hold. They’ve raised antitrust concerns and argue that the ordinance wrongly would allow drivers who log few hours behind the wheel—or who stop driving by the time a union is certified—to have a say in whether a group organizes.

“We continue to believe that the ordinance is unfair, undemocratic, and a threat to driver flexibility,” Lyft spokesman Adrian Durbin told Bloomberg BNA. “Lyft is committed to remaining in Seattle for the long term, but the truth is that many of the issues the City has mandated must be negotiated with the Teamsters could fundamentally change how ride-sharing operates.”

“Forcing old models onto this new workforce would only serve to limit the freedom and flexibility that drivers love about Uber,” Uber spokesman Nathan Hambley told Bloomberg BNA.

Seattle’s lawyers are arguing in part that federal lawmakers left it to states to fill the gap by removing independent contractors from federal labor law coverage. O’Brien also said there’s some irony in the idea that Uber drivers are banned by antitrust restrictions from acting collectively.

“My understanding of antitrust law is that it was intended to break up the robber barons colluding to limit competition,” O’Brien told Bloomberg BNA. “That these companies want to use it to stop low-wage workers from joining together seems to be a stretch.”

California Assemblywoman Lorena Gonzalez Fletcher (D) grappled with some of the same arguments when she introduced a bill to allow gig workers to organize. She and others have asserted that an antitrust exemption for government oversight programs could provide some wiggle room for gig worker groups that operate with significant public input.

Still, Fletcher said unions could go a long way in helping the effort by settling on a clear path forward.

“No individual union has come forward and said ‘this is the approach we want to take,’” Fletcher said.

To contact the reporter on this story: Chris Opfer in New York at copfer@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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