As unemployment benefits declined this week, lawmakers have remained at an impasse over the contents of Congress’s upcoming relief bill. Republicans thus far have offered to extend expanded unemployment benefits at a reduced $400 per week and have proposed around $200 million in aid to state and local governments. Sensing the upper hand, Democrats have rejected both offers, insisting on a complete restoration of the $600 unemployment benefits and $1 trillion in local government support. Democrats have, however, offered to reduce their requested U.S. Postal Service spending from about $25 billion over three years to $10 billion over just one year.
Outside the halls of Congress, workers’ rights groups have continued to rally actively against Senate Majority Leader Mitch McConnell’s proposal to limit corporate liability for worker and customer safety. On Tuesday, the National Employment Law Project (NELP) submitted a letter on behalf of itself and over 270 national and state-based organizations to House and Senate leadership voicing opposition to corporate-immunity legislation. Between May and early July alone, ten states have already passed corporate immunity legislation for businesses against COVID-related workplace and customer liability. As the letter notes, McConnell now seeks to make this policy national.
Also on Tuesday, Missouri became the 39th state to expand Medicaid to cover individuals making 138% of the federal poverty level under the Affordable Care Act (“Obamacare”). The Show-Me State is also the fifth state to expand healthcare coverage via ballot initiative, passing the measure by a 53-47%, margin. Medicaid advocates’ ballot-box strategy appears to be working, with a five-out-of-six winning streak in some deeply conservative states, like Oklahoma last month. The primary organizational force behind these initiatives, the Fairness Project, is the brain child of Dave Regan, President of the California-based union United Healthcare Workers West, who sees pro-worker ballot initiatives as an alternative to organized labor in an increasingly anti-union national environment. The measure, now enshrined in the Missouri Constitution, forbids the imposition of work requirements and will extend coverage to up to 230,000 Missourians in mid-2021.
As many misclassified gig workers struggle amid the absence of a traditional safety net, some commentators in California have begun taking stock of the importance of the state’s new employee law, A.B. 5, which expands the definition of employee to cover most gig workers. This reckoning has taken place amidst a brewing fight over the future of the law, with rideshare companies Uber and Lyft pouring over $110 million into repealing the measure at the ballot box this fall. In the meantime, California regulators are wasting no time leveraging the law to hold those same companies accountable; in a letter on Wednesday, California Labor Commissioner Gilia García-Brown announced her office’s intention to file suit against Uber and Lyft for withholding wages from its drivers under the pretext of their continuing misclassification. According to the Commissioner, nearly 5,000 drivers have filed administrative complaints with the State Department of Industrial Relations. The Commission’s legal action coincides with the launch of several lawsuits against rideshare firms by California Attorney General Xavier Becerra and several city attorneys across the state over misclassification issues.
It was not all good news for drivers’ rights in the legal world, however. On Tuesday, drivers for UPS and Grubhub lost their bids to escape forced arbitration agreements in federal court, each on different grounds. In the case of UPS drivers, a judge for the Eastern District of New York ruled that drivers’ arbitration agreements over statutory claims did not conflict with the workers’ collective bargaining agreement signed between UPS and the International Brotherhood of Teamsters, which waived the union’s right to bargain over the arbitrability of statutory claims. Meanwhile, the Seventh Circuit Court of Appeals held that interstate commerce was not so central a part of Grubhub drivers’ work as to render them exempt from the Federal Arbitration Act under a narrow exception to the law.
Two important developments from last month also bear mentioning: first, last Monday, 43,000 state-subsidized childcare workers in California voted to unionize, with a whopping 97% in favor. The newly formed union, California Child Care Providers United (CCPU), is the product of a joint agreement between the American Federation of State County and Municipal Employees (AFSCME) and Service Employees International Union (SEIU), which have agreed to divide up representation of union members between them by county. The vote represents the largest successful unionization campaign in the United States in over two decades and marks the culmination of a statewide effort dating back to 2003. Crucial to the campaign were two recent pieces of state legislation passed into law—one granting domestic workers union rights under California statute, the other granting the union a list of all home-based childcare providers subsidized by the state, an important organizing tool. Workers and organizers celebrated on a highly emotional Zoom call as the results were announced.
Second, late last month, the Tenth Circuit Court of Appeals became the first appellate court in the nation to recognize mixed sex-plus-age discrimination claims under Title VII. In Frappied v. Affinity Gaming Black Hawk, No. 19-1063, the Court cited the U.S. Supreme Court’s recent decision in Bostock v. Clayton County, which clarifies the non-exclusive nature of Title VII’s but-for-cause standard, to hold that older women plaintiffs could move forward in asserting that sex was a but-for cause for their employment discrimination, even though the women’s age also played a decisive role. The decision suggests the potentially far-reaching consequences of the Bostock decision, which itself only dealt with discrimination based on gender identity and sexual orientation.