In a report published yesterday, researchers at the UC Berkeley Labor Center found that Massachusetts rideshare drivers could earn well below the federal and state minimum wage under a proposed state ballot initiative pushed by ride-hailing giants Uber and Lyft. The measure, filed with state authorities last month, claims to mandate an hourly pay standard equal to 120% of the state minimum wage, as well limited healthcare and insurance benefits, in exchange for exempting drivers from Bay State employment protections. On its face, the measure’s pay guarantee would appear to set a minimum hourly rate of at least $18. Under both proposed versions of the initiative, however, this rate would only apply while drivers are “engaged” in servicing passengers, excluding wait time, which according to Uber amounts to around 33% of the average driver’s on-the-clock hours. The law also promises to reimburse drivers for expenses at a rate of just $0.34 per mile, $0.22 below the IRS’s mileage reimbursement standard. Coupled with other reimbursement loopholes and increased payroll costs, authors Ken Jacobs and Michael Reich estimate that most drivers could earn as little as just $4.86 per hour—far below the $13.50 guaranteed to employees under state law. The measure must receive around 80,000 signatures from state voters before November 17 in order to qualify for the 2022 ballot.
On Tuesday, members of the National Labor Relations Board (NLRB) yet again affirmed the lawfulness of Scabby the Rat. In a unanimous opinion, Members McFerran, Ring, and Kaplan held that the Board’s Administrative Law Judge (ALJ) erred in finding that the rat’s deployment against a so-called “neutral” firm violated the National Labor Relations Act’s (NLRA) ban on secondary boycotts, noting that protesting the neutral’s dealings with “unnamed ‘rat contractors’” was distinct from the union’s dispute over recognition with the primary employer. Members agreed with the ALJ, however, that the union’s demonstrations nonetheless violated NLRA § 8(b)(7)(C), which bans recognitional picketing in excess of 30 days absent submission of an election petition. The case, Int’l Union of Operating Engineers, Local 150 (Donegal Services, LLC), 371 NLRB No. 28 (2021), was one of several prepared by former General Counsel Peter Robb in his quest to ban the rat from union protests. Far from exterminating Scabby, however, the case marks the third since July to uphold Local 150’s use of the balloon animal, reaffirming the Board’s first ruling on the subject in Lippert Components, 371 NLRB No. 8 (2021).
Also on Tuesday, thousands of union members took to the streets of Bogotá, Colombia to protest the roughly $4 billion tax reform package passed last month by the country’s Congress. The demonstrations marked a continuation of mass protests begun earlier this year in response to the conservative government’s tax proposal. Union-led demonstrations in both May and June made international headlines after several violent crackdowns by Colombian police forces, resulting in the resignation of the country’s finance minister and major amendments to the tax bill. The final measure is set to provide around 4 million families with basic income payments, benefitting in total around 29 million people. Unions, on the other hand, back a more aggressive proposal, which would provide a larger sum of $236 per month to some 7.5 million families for the next year.
Stateside, meanwhile, several union locals made headlines this week after a number of hard-fought contract fights were brought to an end. On Tuesday, UNITE HERE Locals 34 and 35 announced that that they had reached an agreement with Yale University on a new contract to cover some 5,000 clerical, technical, culinary, and maintenance employees from next year to March 2027. The still-undisclosed agreement, following on years of contentious relations between the University and New Haven’s union-backed Board of Alders, is expected to be ratified at each union’s respective general membership meeting on October 20, according to the Yale Daily News. Yesterday, meanwhile, San Francisco’s Local 2 secured a new contract with Bon Apetit covering 930 concession workers at the San Francisco Giants’ Oracle Park Stadium. Among other benefits, the new contract includes retroactive wage increases of $1.50 an hour, a separate, $3.00 hourly raise with yearly increases through 2024, a freeze on healthcare premium rates, and a 60% bump in pension benefits. Having voted overwhelmingly to authorize a strike earlier this month, union members are now widely expect to vote today in favor of the agreement. UNITE HERE was not alone in reaching major agreements this week, however; yesterday, Communications Workers of America (CWA) Local 7901 reached the first collective bargaining agreement in the banking industry in over 40 years, securing just-cause protections, 401(k) benefits, and minimum pay levels for some 96 Beneficial State Bank employees.
Finally, with the Supreme Court entering a new term next month, Bloomberg Law offers a helpful summary of labor- and employment-related cases that may soon come before the justices. While at least some Court watchers expect next term to focus on social issues, cert. petitions for the following cases could bring several important workers’ rights issues to the justices’ attention:
- Postmates v. Rimler, No. 21-119 (U.S. July 28, 2021): Regarding whether the Federal Arbitration Act (FAA) should be construed to allow arbitration agreements to block California employees’ from exercising their rights under the state’s Private Attorney General Act (PAGA), a statute which allows private citizens to stand in the shoes of the state as public litigators and has been used to circumvent forced arbitration
- Troesch v. Chicago Teachers Union, No. 20-1786 (U.S. Jun. 23, 2021) and Fischer v. Murphy, No. 20-1751 (U.S. Jun. 16, 2021): on whether the Court’s landmark decision in Janus v. AFSCME, 138 S. Ct. 2448 (2018) limits or forbids state restrictions on the time and manner in which public employees may withdraw voluntary union dues.
- Bennet v. AFSCME, No. 20-1603 (U.S. May 18, 2021): Arguing that the Court should affirmatively require special waivers to collect dues from public-sector workers in light of Janus.
- Rizzo-Rupon v. Int’l Ass’n of Machinists, No. 20-1378 (U.S. March 29, 2021) and Baisley v. Int’l Ass’n of Machinists, No. 20-1643 (U.S. May 26, 2021): Urging the Court to extend Janus’s agency fees ban to collective bargaining agreements governed by the Railway Labor Act (RLA) based on a broad reading of the state action doctrine.
- Cartage Trans. Express v. California, No. 20-1453 (U.S. Apr. 16, 2021) and Cal. Trucking Ass’n, Inc. v. Bonta, No. 21-194 (U.S. Aug. 11, 2021): challenging the application of California’s strict “ABC” test for employee status to truck drivers as federally preempted under the Federal Aviation Administration Act (FAAA).
- Pelcha v. Watch Hill Bank, No. 21-136 (U.S. Aug. 2, 2021): Seeking to clarify whether intersectional age claims are cognizable under the Age Discrimination in Employment Act (ADEA), particularly in light of the Court’s recent hints in favor of such claims in Bostock v. Clayton Cnty., 140 S. Ct. 1731 (2020).
While it remains to be determined what, if any, of these cases the justices will hear in the coming month, any one of them could have major legal ramifications for both employees and workers’ rights advocates if taken up by the Court.