News & Commentary

February 1, 2019

The jobs report was released at 8:30 this morning.  Unemployment rate rose to 4.0%, but average hourly wages grew 3.2% from 12 months prior, up 3 cents per hour from December.  304,000 new jobs were added in January, which exceeds expectations.  The New York Times had predicted that this month’s report would be “a mess,” owing to the erratic data resulting from the shutdown.  Analysis of the numbers will populate media outlets as the day continues.

After Amazon raised its minimum wage to 15 dollars an hour in November, it received a record total of 850,000 job applications for hourly positions.  As Quartz describes, this figure was more than twice the previous record for monthly applicants.

New York’s new law mandating a wage floor for all city drivers takes effect today.  But Lyft is trying to drive New York City off the road to pay equity.  In result, for now, no ridehailing driver will put the benefits of the new law in her pocket.  On Wednesday, both Lyft and Israeli-owned company Juno filed suit against NYC, alleging that the Taxi and Limousine Commission’s manner of implementing the law unfairly disadvantages these smaller ride-hailing companies and tilts the scale in favor of the competition (Uber).  The court declined to grant a temporary restraining order that would delay the new law from taking effect, but did order ride-hailing companies to hold any differentials between the now-mandated minimum and usual pay in an escrow account.  Provocatively, Lyft and Juno allege that the TLC’s rules facilitate Uber’s distinctively aggressive efforts to squeeze out smaller companies.  The new law’s pay floor – $17.22 per hour after expenses, or $26.51 per hour before expenses – must be paid no matter the time of day or how many riders drivers pick up.  That scale was based on two labor economists’ calculations, with inputs involving trip length, distance, and a “utilization rate,” which measures the efficiency of cars’ service – i.e., a low utilization rate firm has too many cars on the road that are unoccupied.  (Ride-hailing companies prefer to have empty cars out on the road because that reduces passenger wait time; the city, in addition to concerns about driver wages, would like to disincentivize adding to traffic.)  But Uber and Via have higher utilization rates than Lyft and Juno, and thus the smaller, lower-rate firms will be paying their drivers more, as Wired explains.

In L.A., Rideshare Drivers United is working to unionize rideshare drivers in order to gain power, as they work in the fastest-growing, low-wage job in the city.  On Wednesday, organizers and dozens of drivers rallied in downtown L.A. to announce a “rideshare driver’s bill of rights,” which was delivered to Gov. Gavin Newsom’s office.  Lyft has publicly responded by pointing to its efforts to push legislation that will provide drivers with portable benefits, not tied to the company; Uber has also been supporting these reforms.

The Sixth Circuit recently addressed yet another dispute involving the appropriate test to determine whether a worker is an employee or a contractor.  A divided panel held for American Family Insurance, reversing the district court, and found that insurance agents are contractors and thus ineligible for ERISA.  The plaintiffs had alleged that the insurance company deliberately mislabeled them as contractors in order to deny the benefits; the Sixth Circuit found that in the ERISA context control and supervision are not factors to be weighed heavily.  JD Supra explains the opinion and notes that American Family Insurance’s liability in this case would have exceeded 1 billion dollars.

The National Mediation Board has proposed a rule that would offer railroad and airline employees faster routes to decertify their unions.  (The NMB is an independent federal agency that aims to keep the airline and railroad industries running smoothly by facilitating labor-management relations, resolving disputes promptly, and protecting freedom of association among employees.)  Currently, under the Railway Labor Act, workers seeking to decertify their unions must first sign cards to authorize another representative, a “straw man.”  The straw man must then be rejected in a decertification election – i.e., members choose no representation by nixing both their current representation and the straw man.  According to the NMB, this straw man requirement needlessly complicates the process and effectively, without value, obstructs employee access to “freedom of association” in the workplace.   If the NMB eliminates the straw man, it can authorize a decert vote if it finds among employees “valid and sufficient” interest to lose the union.  As Bloomberg Law notes, that one of the three-person NMB dissented indicates that signification opposition to the proposed rule might develop as the comments period proceeds.

Virginia right-wing lobbyists have thwarted efforts to ratify the Equal Rights Amendment.  The ERA regained momentum in the wake of #MeToo, 95 years after it was written.  In Virginia, the GOP-led state senate approved the ERA and was poised to become the critical 38th state to ratify, but the House Privileges and Elections Subcommittee kept the bill from hitting the House floor.  The 12-10, party-line vote is due in part to Victoria Cobb of the Family Foundation of Virginia, who lobbied aggressively to quash the ERA, and who maintains that the amendment would entail greater abortion rights.  Petula Dvorak comments in the Washington Post that Cobb, today’s Phyllis Schlafly and a proud third-generation anti-ERA warrior, is at base disingenuous when she asserts that her own professional and personal successes demonstrate that the ERA has no purpose.  Cobb fails to recognize the extent to which her racial, class and social privileges have helped to insulate her from many of the harms other women face, especially in the workplace.  Since 2017, Nevada and Illinois have ratified; Indiana was otherwise the most recent to ratify, in 1977.  Since the Virginia failure, legislators in Georgia have started pushing to support the ERA.

The New York Times reports on a long-term, persistently-ignored crisis in public defense: exorbitantly high caseloads.  For the first time, efforts are underway to quantify what it would take to realign caseloads with ethical and constitutional standards.  Stephen Hanlon, general counsel for National Association for Public Defense, is working with the American Bar Association and accounting firms to collect data and formulate clear guidelines on how many cases a PD can handle competently and ethically, without violating her clients’ rights.  In most offices and districts, the defender is denied the means of doing the job well – when one individual has the workload of five, the lawyer cannot truly lawyer.  The absurd numbers raise questions involving the status of defendants’ Sixth Amendment right to effective counsel.  But it is also worth considering what these caseloads reveal about the attorneys’ working conditions.

A Dutch historian and an Oxfam International executive took the mic at a panel at the World Economic Forum meeting in Davos last month, and pointed out that the ultra-rich and powerful in attendance were obfuscating real issues of poverty, income inequality, and harsh job conditions (including in ridesharing and other gig roles).  Video of the panel has been “reverberating around the world,” the Washington Post reports.


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