How Bad Could it Get (Legally)?

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement.  This important work is underway, with contributions from academics, labor lawyers, union organizers, and others.  Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review.  Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed.  This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years.  Most of us know much of this already, so you might wonder what the point of such a morose exercise would be.  The idea is not to wallow.  To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats.  One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely.  Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts.  Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible.  For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: Continue reading

Sign of the Times?

Notable that as commentators in the U.S. call for a move from enterprise to sectoral-level bargaining, relying in part on the the French example, France’s new President wants his country to move from sectoral to enterprise-level bargaining.

Alito on Work-Life Balance

In an interview published last week in Seminarian Casual, Justice Alito offered some important remarks about work-life balance.  Asked how he has managed to balance “work and family life,” Alito answered:

I have been fortunate to have jobs that allowed me to control my work schedule to a very great degree.  As an appellate judge, I have had to work very long hours, but I have largely been able to choose when and where I have done my work.  I think I attended just about every one of my kids’ athletic events, concerts, and school programs.  That often meant saving my work for late at night and weekends, but I was able to do that.  Very few people today have this luxury, and it is hard for busy people to balance work and family life.  Our society needs to do a better job of making this possible.

As OnLabor readers will be aware, unions play a critical role in making possible the kind of life that Alito rightly celebrates.  Evidence for this union effect is available herehere, here, here and here.  Alito himself has the capacity to enable unions to play this role, and thus to ensure that our society does a better job allowing more of us to balance work and family life.

(Thanks to Andrew Strom for calling this to our attention.)

Upton Sinclair in Canton, Ohio: The Nightmare of Case Farms

Michael Grabell’s New Yorker piece on Case Farms’ poultry plants is a must-read. Much of it will be depressingly familiar: horrid safety and health conditions (“since 2010, more than seven hundred and fifty processing workers have suffered amputations”); repeated use of immigration sanctions to deter organizing activity (“the union received a letter saying that it had come to the company’s attention that nine of its employees might not be legally authorized to work in the United States…[s]even were on the union organizing committee…[a]ll were fired”; food workers wearing diapers because they aren’t granted bathroom breaks.  But in this 2017 version of The Jungle, one wonders how – if at all – the relevant federal agencies will respond. Hopefully not, as Grabell rightly worries, by increasing immigration enforcement during labor disputes.

New Harvard Law Review Piece on Grad Student Unions

There’s a new piece of student writing in the most recent Harvard Law Review that offers a different take on the Board’s Columbia University decision regarding graduate student union rights.  The piece focuses on the Board’s use of empirical evidence in the decision, applauds it in part, but criticizes the Board for what the piece calls “cherry picking.”  Worth reading.

Supreme Court Grants Cert in Class Action Waiver Cases

As reported in the BNA Daily Labor Report, the Supreme Court today granted review in Murphy OilErnst & Young, and Epic Systems, three court of appeals cases that address the question of whether class action waivers in mandatory employment arbitration agreements are unlawful under the National Labor Relations Act.  We’ve covered this question in some depth, and will continue to do so now that the issue will be before the Court.

Uber and Progressive Federalism

As Jon reported last night, an individual arbitrator has issued an award finding a California Uber driver to be an independent contractor rather than an employee.  The award is wrongly decided. I won’t engage in a complete analysis here, but, to find employee status, the arbitrator relies primarily on four California cases, three of which involved FedEx drivers. The arbitrator concludes that the facts of the Uber case resemble previous cases in which workers were found to be independent contractors. She holds:

Uber drivers are not supervised; supply the cars they drive; do not wear Uber uniforms or signage; can drive simultaneously for any competitor, including Lyft, Uber’s biggest competitor; are paid for each ride and have the unfettered option to work as little or as much as they want and whenever they want in the geographical location assigned to their platform.

But to find independent contractor status on this basis, the arbitrator has to ignore some other highly relevant cases, including a 2006 California decision involving drivers who worked for a courier company, JKH Enterprises, Inc. v. Dep’t of Industrial Relations. In JKH, the court found that the drivers were employees despite the following:

[T]he drivers are free to decline to perform a particular delivery when contacted by the dispatcher, even if the driver has indicated his or her availability for the day . . . .  All drivers [] use their own vehicles . . . They pay for their own gas, car service and maintenance, and insurance . . . . The drivers’ cars do not bear any JKH marking or logo. And the drivers themselves do not wear uniforms or badges that evidence their affiliation or relationship with JKH.  Some of the drivers perform delivery services for other companies as well . . . .  The drivers receive no particular training. . . . All drivers set their own schedules and choose their own driving routes.  Their work is not supervised.  Indeed, JKH only has a vague idea of where its working drivers are during the business day. . . . The drivers take time off when they want to and they are not required to ask for permission in order to do so.

So, this particular Uber arbitration award is wrongly decided. Of much broader importance, however, the award brings home something critical about progressive federalism: namely, progressive states need to clarify that gig workers, like Uber drivers, are employees within the meaning of state employment law. Continue reading