News & Commentary

May 28, 2019

Ryan Gorman

Ryan Gorman is a student at Harvard Law School.

This Friday is the deadline for the California Assembly to send bills originating in the chamber to the state senate for approval. One of those bills, AB-5, seeks to codify and clarify the holding of last year’s California Supreme Court decision in Dynamex Operations West, Inc., which laid out a three-prong test that employers must meet to prove that workers are independent contractors rather than employees under state law governing wages and hours. The bill reflects a months-long process of wrangling in the state legislature, as labor advocates and business groups fought over which workers and industries would be covered by the act. While recent amendments exempted various client-based professional services from Dynamex’s reach, the bill would bind Uber and other ride-sharing companies to the strictures of that decision. Application of the Dynamex standard to those companies would likely mean that drivers in the “gig economy” are employees under California wage law – a classification that would differ from the NLRB general counsel’s recent determination that Uber drivers are contractors rather than statutory employees under the National Labor Relations Act.

This September, the National Labor Relations Board is expected to propose new rules governing the extent to which graduate students who teach at universities are covered by federal labor laws, according to regulatory documents released last week. As Rachel discussed yesterday, graduate student workers nationwide have been organizing to protect their rights in the workplace. Faculty and graduate students across the country have sought, through strikes and negotiations, to secure contracts that provide some amount of wage security, inspired partly by a year that saw K-12 teachers organize walkouts to protest their own working terms. The NLRB’s most recent word on the subject came during the Obama administration in 2016, when the Board ruled that graduate student assistants qualified as “employees” under the National Labor Relations Act, and were thus entitled to the Act’s protections. The Trump Board seems poised to reverse that decision, and continue its project of weakening worker protections. As Catherine Fisk argued at the time of the Obama Board’s decision, recognizing graduate student assistants as statutory employees appropriately acknowledges the work that those assistants do for the universities while improving academic freedom.

Yesterday, Danielle Spooner, the president of the of the American Federation of Government Employees union representing employees at the U.S. Citizenship and Immigration Services (USCIS), denounced Ken Cuccinelli, President Trump’s expected pick to replace the current head of USCIS. Spooner claimed that Cuccinelli’s appointment would be “the end of legal immigration as it currently exists.” The union backlash echoes a fight in February over the president’s pick to lead Immigration and Customs Enforcement.

On the political front, many of the nation’s largest unions plan to refrain from endorsing a particular Democratic presidential candidate until later in the campaign cycle. Some have argued that union voters’ shift from Obama to Trump helped swing the 2016 election in the latter’s favor, especially in key states such as Pennsylvania, Michigan, and Wisconsin. In an effort to win back those lost voters, Democrats in the House have introduced sweeping legislation that would take various steps to make union organizing easier, while making employer interference with such efforts more difficult and costly.

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