News & Commentary

August 5, 2021

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

Ongoing revelations surrounding New York Governor Andrew Cuomo’s serial sexual misconduct while in office have lost the governor the support of organized labor.  Since Tuesday, a host of labor groups—including the Hotel Trades Council, Service Employees International Union (SEIU) Local 32BJ, New York State United Teachers (NYSUT), the Retail, Warehouse, and Department Store Union (RWDSU), the American Federation of State, County and Municipal Employees (AFSCME) District Council 37, and the New York State AFL-CIO—have all called on Cuomo to resign in the wake of a damning report released this week by the State Attorney General’s office.  Nonetheless, the Governor has remain intransigent, leaving lawmakers in New York’s General Assembly to debate removing him from office.

Members of the U.S. Senate Health, Education, Labor and Pensions (HELP) Committee deadlocked on Tuesday on whether to advance Brandeis University Professor David Weil’s nomination to lead the Department of Labor’s Wage & Hour Division (WHD).  The tied 11-11 vote fell along party lines and will force Senate Majority Leader Chuck Schumer (D-NY) to schedule an additional procedural vote in the Senate in order to discharge the nomination from committee.  Weil’s nomination drew Republican criticism due to his previous record leading WHD under former President Barack Obama, during which time Weil developed a reputation for aggressive enforcement.  Republican HELP Committee members excoriated Weil at his July 15 confirmation hearing for his past work, claiming that his efforts to hold employers accountable had stifled franchising and independent contracting.  The fight over Weil’s nomination comes in the midst of several rulemakings by WHD on issues such as tipped wages, minimum wage standards for federal contract employees, and prevailing wage rules on government-financed construction projects under the Davis-Bacon Act.  The last of these could prove abnormally consequential in the months ahead as policymakers move forward with a $1 trillion government investment in roads, bridges, and other so-called “hard” infrastructure.

Yesterday, Axios reported that reporters at POLITICO are actively mounting a campaign to unionize the company’s newsroom.  The proposed bargaining unit would represent some 375 employees at both POLITICO and E&E News, an environmental publication acquired by POLITICO last year. POLITICO is one of the largest newsrooms to have resisted unionization in the past, yet the company has suggested an initial willingness to recognize a union if chosen by the majority of employees.  According to Axios sources, issues such as employee benefits and editorial decisionmaking has played a role in fomenting the unionization push.  Elsewhere in Washington, longtime Washingtonian Magazine CEO Catherine Merrill has undertaken an active pressure campaign to dissuade employees from unionizing during a mail-in union election at the magazine this week.  Merrill made headlines earlier this year with a now-infamous Washington Post article in which she appeared to threaten her own employees if they refused to return to work during the pandemic, fueling the unionization effort shortly thereafter.

Finally, rideshare companies Uber, Lyft, DoorDash, and Instacart moved forward this week with plans to place a proposal on the Massachusetts ballot that would allow them to deny their drivers rights as employees.  The measure, filed on Wednesday for the November 2022 election, is based closely off of California’s Proposition 22, which excluded rideshare drivers from employee status under state law. Specifically, the measure would guarantee certain health benefits for rideshare drivers while also reclassifying them as independent contractors under Massachusetts law, allowing the ride-hailing apps to avoid providing minimum wage, overtime, and other statutory employee benefits. Like California, Massachusetts employs the broader so-called “ABC” test to determine employee status, leading many to believe that rideshare drivers qualify as employees under state law. Currently, Uber and Lyft are locked in a legal battle over this very question with Massachusetts Attorney General Maura Healy, who accuses them of misclassifying and illegally underpaying their employees.

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