Ted Parker is a student at Harvard Law School and a member of the Labor and Employment Lab.
In today’s news and commentary, California farmworkers score a win against The Wonderful Company, New York City and Chicago consider requiring companies like Amazon to directly employ delivery drivers, and the Supreme Court takes a case on whether the FAA exempts last-mile drivers from arbitration agreements.
Last week, a three-judge panel of the California Court of Appeal threw out a case challenging the constitutionality of a state law allowing farmworkers to unionize via card check. The case originated in an effort by the United Farm Workers (UFW) to be certified as the bargaining representative of over 600 workers employed by The Wonderful Company (known for Wonderful Pistachios, Fiji Water, and POM juice) at a grape nursery in Wasco. After the UFW filed a Majority Support Petition with the state’s Agricultural Labor Relations Board (ALRB), Wonderful filed objections, claiming workers were tricked into signing cards. But before the ALRB could reach a decision, Wonderful filed a case in California state trial court attempting to preempt the agency. Last Tuesday, the decision of the trial court (favorable to Wonderful) was swatted down by the appeals court on the grounds that neither court had any jurisdiction until the ALRB concluded its work. The decision was thus a win for the UFW. However, in the meantime Wonderful has ended its operations at the Wasco nursery.
New York City and Chicago consider innovative new regulations that would require companies like Amazon to directly employ “last-mile” drivers—that is, the drivers who transport packages from Amazon fulfillment centers to their final destinations. Currently, Amazon outsources this work to independent contractors and small businesses, which has led to worse conditions for last-mile drivers and makes it harder for them to unionize (as the Battle-Tested Strategies saga shows). Until now, advocates have attempted to expose these arrangements as legal fictions, arguing that Amazon is better understood as the employer of these drivers (whether through independent contractor misclassification or a joint employer theory). The proposed legislation sidesteps this debate by simply requiring companies like Amazon to hire these drivers as its employees if it wants to operate within city limits. Chicago City Council member Julia Ramirez and New York City Council member Tiffany Cabán are championing the legislation, which could potentially be passed in a matter of months.
Finally, in other last-mile driver news, the Supreme Court agreed to hear a case, Flower Foods Inc. v. Brock, on whether those workers are exempt from the Federal Arbitration Act (FAA). The FAA exempts from arbitration agreements “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” As Andrew has explained, that exception was fashioned by Congress in 1925 to exercise its Commerce Clause power as broadly as the Supreme Court would then allow. Below, the Tenth Circuit, aligning itself with the First and Ninth Circuits, found that last-mile drivers, even if they never themselves crossed state lines, were nevertheless part of the flow of interstate commerce and thus exempt from the FAA.
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December 1
California farmworkers defend state labor law, cities consider requiring companies to hire delivery drivers, Supreme Court takes FAA last-mile drivers case.
November 30
In today’s news and commentary, the MSPB issues its first precedential ruling since regaining a quorum; Amazon workers lead strikes and demonstrations in multiple countries; and Starbucks workers expand their indefinite strike to additional locations. Last week, the Merit Systems Protection Board (MSPB) released its first precedential decision in eight months. The MSPB had been […]
November 28
Lawsuit against EEOC for failure to investigate disparate-impact claims dismissed; DHS to end TPS for Haiti; Appeal of Cemex decision in Ninth Circuit may soon resume
November 27
Amazon wins preliminary injunction against New York’s private sector bargaining law; ALJs resume decisions; and the CFPB intends to make unilateral changes without bargaining.
November 26
In today’s news and commentary, NLRB lawyers urge the 3rd Circuit to follow recent district court cases that declined to enjoin Board proceedings; the percentage of unemployed Americans with a college degree reaches its highest level since tracking began in 1992; and a member of the House proposes a bill that would require secret ballot […]
November 25
In today’s news and commentary, OSHA fines Taylor Foods, Santa Fe raises their living wage, and a date is set for a Senate committee to consider Trump’s NLRB nominee. OSHA has issued an approximately $1.1 million dollar fine to Taylor Farms New Jersey, a subsidiary of Taylor Fresh Foods, after identifying repeated and serious safety […]