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.”
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.
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.”
Uber drivers and other gig economy workers in Seattle may soon be able to unionize, as the city is close to finalizing rules to implement an ordinance passed last year which survived a court challenge. According to the Seattle Post-Intelligencer, “the city’s Finance and Administrative Services department held a public hearing to take comments on the draft rules.” More than 20 people signed up to testify. The proposed rules can be found here. Seattle’s target date for implementation is January 17, 2017, and collective bargaining negotiations could begin as soon as next summer.
The race for chairman of the Democratic National Committee features two front-runners with strong pro-labor backgrounds, and unions appear divided. NBC News reports that “the International Association of Firefighters, the main union representing American firefighters, has placed itself on a collision course with the AFL-CIO in the race for the next chairman of the Democratic National Committee, deciding to back Labor Secretary Tom Perez over Minnesota Rep. Keith Ellison.” Perez has also garnered the support of the UFW and the UFCW. Per Bloomberg BNA, both candidates have strong records supporting organized labor.
Logging continues to be the most dangerous job in America, according to new data released by the Bureau of Labor Statistics. Forbes notes that “last year loggers suffered 67 fatalities while on the job, with a fatality rate of 132.7,” while the “occupation which suffered the most fatalities overall was that of driver/sales workers and truck drivers.”
A new study released by the Economic Policy Institute and co-authored by OnLabor Senior Contributor Jake Rosenfeld won’t surprise readers with its key finding – a significant link between the decline in union membership and increased income inequality in America. Salon notes that the researchers “looked at both urban and rural regions of the country as well as areas with strong and weak union representation to gain a better perspective on how declining union numbers affect nonunion working men and women as well as those workers with some higher education and those with just a high school diploma or less,” finding that “working-age men without high school diplomas have been hurt the most in comparison with such workers nearly four decades ago.” The American Prospect further reports that “union membership makes a tremendous difference for people who do not have college degrees.”
Following up on last week’s National Labor Relations Board ruling that graduate students at private universities are statutory employees who can unionize under the National Labor Relations Act, Inside Higher Ed highlights a crop of “anti-union” websites launched to deter students from organizing. Since the ruling “Columbia, along with Harvard, Princeton and Yale Universities and the University of Chicago, have posted information online about the possible effects of unionization. Most point out that all union members must pay dues and are expected to participate in strikes, should they occur, and that unionization won’t necessarily improve their working conditions. Some contain concerns previously voiced to, and largely rejected by the NLRB — namely that unionization compromises the student experience in a number of ways.”
In March, OnLabor’s Sara Ziff asked if Donald Trump’s modeling agency was flouting immigration and employment agency law – and a new Mother Jones report confirms the answer is in fact a ‘yuge’ yes. In fact, “the mogul’s New York modeling agency, Trump Model Management, has profited from using foreign models who came to the United States on tourist visas that did not permit them to work here, according to three former Trump models, all noncitizens, who shared their stories with Mother Jones. Financial and immigration records included in a recent lawsuit filed by a fourth former Trump model show that she, too, worked for Trump’s agency in the United States without a proper visa.”
The 2008 election produced the only institutional arrangement seemingly able to break legislative logjams in our age of polarization: consolidated party control over the entire federal government, alongside a filibuster-proof majority in the Senate. Union leaders and their allies saw an opening for significant labor law reform, a goal that had proved elusive for over half a century. Combined with the hard-earned lessons learned by an increasingly diverse and creative leadership rank, organized labor looked to a new legal framework as a way to catalyze organizing drives and finally, at long last, staunch the steady loss of membership.
The excitement proved short-lived. Labor’s signature piece of legislation, the Employee Free Choice Act (EFCA) stalled in the Senate in the summer of 2009, meeting the same fate as prior efforts to rebalance the legal playing field governing labor and management. The 2010 midterm wipeout of Democratic officeholders in the House and Senate ensured another presidency would pass without reform. Many analysts – myself included – believed that absent a fundamental change in the legal framework governing collective bargaining in this country, the labor movement would continue to recede into the background of the nation’s political economy.
By certain indicators, we were right. Roughly 1 in 20 private sector workers belongs to a labor union today, 1/7th the rate during labor’s heyday, and the recent past has revealed the fragility of labor’s public sector power, spared a further legal setback only by the death of Justice Scalia.
Yet as we enter President Obama’s final months in office, it’s clear the prediction missed something important. Yes membership remains at historic lows. But, to borrow from Richard Yeselson, “laborism” is ascendant, in spite of the little actual labor to keep it afloat. The Fight for 15 – begun as a small organizing battle in the town of Seatac, Washington – is transforming the lives of millions of low-wage workers. Fast food protests and OUR Walmart’s spotlight on the retail behemoth pressured employers to improve working conditions. President Obama’s recent executive orders and a newly-emboldened NLRB demonstrate what can be accomplished in the face of Congressional gridlock. And the surprising success of Bernie Sanders’ campaign is pushing a worker-friendly agenda into the Democratic Party platform – and into Hillary Clinton’s policy program.
Over the past two years, advocacy and media attention around work scheduling has expanded dramatically. In 2014 and 2015, ten states and Democrats in Congress introduced legislation to increase scheduling predictability for workers. In April, Seattle legislators followed suit and announced that they are drafting a scheduling ordinance. Hillary Clinton mentioned the issue in a campaign speech on economic policy, and nine attorneys general have now sent letters asking for information on businesses’ on-call scheduling practices, following inquiries by New York Attorney General Eric Schneiderman.
To provide background on these developments, this post explores the issue of unpredictable scheduling and the laws and legislative proposals addressing it.