News & Commentary

August 25, 2019

On Friday, the National Labor Relations Board held in Bexar County Performing Arts Center Foundation that the employees of a property’s contractor or licensee do not have the same access rights under Section 7 of the National Labor Relations Act as the employees of the property owner.  In so doing, the Board overruled two Obama-era precedents, New York New York Hotel & Casino and Simon DeBartolo Group.  The Board reasoned that, in Lechmere and its progeny, the Supreme Court had consistently made a distinction “of substance” between employees and nonemployees.  Under Bexar County, a property owner has the right to exclude off-duty contractor or licensee employees unless the employees work regularly and exclusively on the property and the owner cannot show any reasonable alternative means for the workers to communicate their message.  In dissent, Board Member Lauren McFerran criticized the Trump-appointed majority for once again reversing precedent without inviting public briefing.

The New York Times published a feature story on the plight of laundry workers in New York City.  The piece reveals a divide between the immigrants who primarily own and operate laundromats in the city and the immigrants who work in them.  With in-house washers and dryers remaining a luxury in the five boroughs, the resulting demand for local laundry services has created an opening for immigrant families to start profitable businesses.  But many of those owners have also subjected their employees to poor working conditions and paid them below minimum wage.  With help from the Laundry Workers Center, some workers have organized to secure their rights.  Unfortunately, those efforts have occasionally backfired as owners have cut hours or facilities have shut down.

Amazon delivery drivers are the latest beneficiaries of the Supreme Court’s January decision in New Prime Inc. v. Oliveira.  In that case, the Court held that the Federal Arbitration Act (FAA)’s general mandate that arbitration agreements are enforceable did not apply to transportation workers engaged in interstate commerce, whether those workers were classified as employees or independent contractors.  This week the U.S. District Court for the District of Massachusetts held in Waithaka v., Inc. that Amazon delivery drivers fell within the transportation worker exception to the FAA, even if they never crossed state lines.  The court explained that intrastate drivers remained “indispensable parts” of the company’s interstate distribution system.  The drivers can now continue with their class action lawsuit.

In the wake of the Business Roundtable’s statement that corporations should advance the interests of all stakeholders and not just shareholders, Terri Gerstein and Jane Flanagan sketch out what it might actually look like if corporations operated with the needs of employees in mind.  They explain that corporations would pay a living wage and robust benefits to their employees, but also to the temporary and contract workers that make their businesses run.  Employee-focused businesses would also invest in training, allow workers to vindicate their rights in court rather than arbitration, and permit workers to engage in collective action.

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