Gig News: Court Enjoins Enforcement of Seattle Gig Unionization Ordinance

Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington has enjoined enforcement of Seattle’s first-in-the-nation ordinance giving gig economy independent contractors the right to unionize (the “Ordinance”.)  Judge Lasnik’s full decision granting the U.S. Chamber of Commerce’s motion for preliminary injunctive relief in Chamber of Commerce of the United States of America v. City of Seattle can be found here.  Uber, Lyft and a third ride hailing company had been due to submit driver information this week to a union recognized as a “qualified driver representative” pursuant to the Ordinance, but the requirements “are hereby enjoined until this matter is finally resolved.”

Notably, Judge Lasnik found that the Chamber may succeed on the merits of its antitrust claim, pending analysis of the City’s claim for antitrust immunity, but that the Chamber and drivers challenging the Ordinance in a consolidated lawsuit are unlikely to succeed on their National Labor Relations Act preemption claims at the moment.  Judge Lasnik stressed “that this Order should not be read as a harbinger of what the ultimate decision in this case will be when all dispositive motions are fully briefed and considered.  The plaintiffs have raised serious questions that deserve careful, rigorous judicial attention, not a fast-tracked rush to judgment based on a date that has no extrinsic importance.”

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Gig News: Seattle Gig Unionization Ordinance On Hold

Despite surviving multiple court challenges, the revolutionary Seattle municipal ordinance giving gig economy independent contractors the right to unionize appears to be on hold.

According to Bloomberg BNA, a Seattle city attorney announced the city will delay enforcement of the law in proceedings before the district court hearing the challenge to the ordinance last week.  Uber, Lyft and a third ride hailing company had been due to submit driver information today to a union recognized as a “qualified driver representative” pursuant to the ordinance.  Seattle will not requite the companies to disclose the driver information until Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington rules on a motion filed by the U.S. Chamber of Commerce, which brought the lawsuit challenging the ordinance.

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Today’s News & Commentary — April 3, 2017

The New York Times has a thorough feature about how Uber is using “psychological tricks” to subtly control the drivers who use the service. The article focuses on how the company “solves” the problem of how it cannot exert too much control over its drivers—currently treated as independent contractors—by using inducements: alerts questioning decisions to log out of the app, reminders of monetary goals, and sending drivers their next ride even before their previous ride is over. In turning the app into a video game, the article—and several researchers it cites—argue that Uber is in reality asserting quite a bit of control over drivers.

California Assemblymember Lorena Gonzalez Fletcher plans to introduce a bill allowing gig economy workers—like Uber and Lyft drivers—to unionize, according to the Los Angeles Times. Fletcher introduced a bill last year attempting to do the same, but pulled it after facing both business and labor opposition. The California push comes at the heels of Seattle’s ordinance allowing ride-hailing drivers to unionize and New York City’s informal union affiliation.

Mother Jones has an article providing more detail into how a private prison company put detained immigrants to work without pay, leading to a lawsuit that was certified as a class action a little over a month ago. By using “voluntary” workers, the prison company—the GEO Group—plausibly saved hundreds of thousands of dollars.

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Weekend News & Commentary — March 18-19, 2017

On the campaign trail, President Trump pledged that he would create 25 million jobs over the next decade.  Will he keep his promise?  The New York Times thinks not.  The Editorial Board takes aim at the President’s “wheezing jobs effort,” pointing to his recently released budget proposal — which would cut the Department of Labor’s budget by 21% and eliminate several important jobs programs — and his neglect of important job markets, such as the clean energy sector.

President Trump’s labor policies have also attracted the ire of unions and labor leaders.  The SEIU and Food Chain Workers Alliance have announced a general strike on May 1 (#May1Strike), coinciding with International Workers’ Day.  More than 300,000 food chain employees and 40,000 service workers are expected to turn out, The Hill reports, to protest the Trump administration and in particular its hardline stance on immigration.

Meanwhile, the administration’s immigration crackdown has worsened the farm labor shortage in California, The Los Angeles Times reports.  Although farm wages have shot up, few Americans have been willing to accept those jobs — casting doubt on President Trump’s claim that tougher borders will help American-born workers.

Disney will be paying $3.8 million in back wages to 16,339 of its “cast members” as part of a settlement with the Department of Labor.  The DOL’s investigation revealed that Disney resorts in Florida deducted a “costume” expense that caused some employees’ hourly rates to fall below the federal minimum wage.  The Christian Science Monitor has more.

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Today’s News & Commentary — March 14, 2017

While Uber attempts to discourage the unionization of drivers in Seattle, some drivers are challenging the municipal law giving drivers the right to organize.  According to the Seattle Times, “the drivers are seeking a temporary restraining order barring the city from enforcing the law — the first of its kind in the country — saying it goes against federal labor and privacy laws, as well as violates their rights to free speech and association.”  The lawsuit is being led by the National Right to Work Foundation and the Freedom Foundation.  The drivers primarily argue that the National Labor Relations Act pre-empts the municipal law.

Another innovative municipal law has gone into effect, in San Jose, CA.  The Mercury-News notes that ” San Jose businesses with 36 or more employees must now offer extra shifts to part-time workers before hiring new staff.”  Under the Opportunity to Work measure, “companies must offer — in writing — extra work hours to existing qualified part-time employees.  If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts.  The idea, advocates say, is to give existing workers access to extra hours to boost their paychecks.”

Muslim workers in Europe suffered a legal setback in seeking to assert their right to wear the hijab in the workplace.  The Washington Post reports that “The European Court of Justice issued a non-binding ruling Tuesday that employers can prohibit the Muslim headscarf in the workplace, setting an important precedent for a continent in the midst of a fraught political climate.”  The ECJ concluded that rules against the wearing of the hijab in the workplace were in fact rules against the visible wearing of religious signs, and thus not direct discrimination.  Notably, “in the absence of official internal regulations prohibiting what employees can wear to work, the court suggested, Muslim women have a stronger case for wearing the hijab to the office.”

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Today’s News & Commentary — March 2, 2017

The Wall Street Journal reports that the Trump Administration has developed a new draft policy deemphasizing the role that the World Trade Organization plays in trade enforcement.  Instead, the Administration would rely more aggressively on U.S. law and “all possible sources of leverage to encourage other countries to open up their markets.”  The draft document outlining this strategy could be released as early as today.  In his speech to Congress on Tuesday, President Trump said, “I believe strongly in free trade, but it also has to be fair trade. It’s been a long time since we had fair trade.”  Trade was a popular issue for President Trump in his campaign, and he vowed to be tougher on enforcement.  Read more here.

While some workers in the U.S. have celebrated the United States’ withdrawal from the Trans-Pacific Partnership (TPP), the New York Times published an article focusing on the workers who fear that the United States’ departure from the agreement could lead to an abandonment of labor and environmental commitments in TPP countries.  Do Thi Minh Hanh, a Vietnamese labor activist, fears that “[t]he Vietnamese government will use this as an excuse to suppress the labor movement” because “[t]hey never wanted to have independent unions in Vietnam.”  The United States and Vietnam had a side agreement, or consistency plan, to ensure compliance with certain basic labor standards including criminalizing forced labor and the elimination of a government ban on independent unions.  While critics of these protections have maintained that they are largely ineffectual, some proponents including law professor David A. Gantz, an expert on international trade agreements, argue that the provisions in the TPP “might have made a real difference.”

Uber continued to make headlines when a video of Travis Kalanick, Uber founder and CEO, arguing with an Uber driver, Fawzi Kamel, became public.  Responding to Kamel’s contention that Uber has slashed rates for drivers, Kalanick told Kamel that he needs to “take responsibility” for his own issues.  Yesterday, in a memo to workers at Uber, Kalanick stated that “[i]t’s clear this video is a reflection of me” and “the criticism we’ve received is a stark reminder that I must fundamentally change as a leader and grow up.”  The video’s release and Kalanick’s apology comes shortly after former-Uber engineer Susan Fowler published a blog post exposing sexism at the company, which garnered significant media attention.  In an optimistic New York Times piece, Farhad Manjoo opines that the Uber scandal “feels like a watershed” and predicts a change in the treatment of women in tech.  In an industry where Fowler’s complaints ring true for many, diversity advocates suggest that the recent actions by Uber to address the incident are only the beginning.

Veronica Escobar, an El Paso County Judge, authored an op-ed in the New York Times, describing how President Trump’s immigration policies could harm the U.S. and in particular, her community of El Paso.  She highlighted the jobs created by cross-border trade and the contributions of dreamers, undocumented immigrants who entered the United States as children, to the U.S. economy.  She says that if given work authorization, dreamers are estimated to increase government revenues by $2.3 billion.  Read more here.

Gig News: Brazilian Judge Finds Uber Driver Is Employee

A labor court judge in the state of Minas Gerais, Brazil has found that an Uber driver there is an employee of the company, taking the debate over the classification of drivers to another country.  The Brazilian newspaper Zero Hora reports that the decision is the first in Brazil to recognize Uber as an employer of drivers.  According to Reuters, the judge “ordered Uber to pay one driver around 30,000 reais ($10,000) in compensation for overtime, night shifts, holidays and expenses such as gasoline, water and candy for passengers.”  Uber announced that it will appeal the decision.  The ruling only applies to a single driver, but could open the door to more challenges.

Brazilian news portal G1 notes that the judge applied a multi-factor test for employment status under Brazilian law.  Key factors included that a) users are assigned a driver by Uber, unable to select from options; b) Uber (not the passenger) pays drivers at the end of each week after withdrawing a percentage, thus going beyond simple mediation of passenger-driver business; c) transport is Uber’s primary business, as partially evidenced by its investment in automobiles vehicles; and d) Uber drivers are submissive to the company, forced to comply with strict rules in order to drive for the company.

Zero Hora also emphasized that the judge found that drivers were encouraged to drive regularly despite flexibility, and that Uber engaged in a hiring process by approving drivers.

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