News & Commentary

February 14, 2021

Nikita Rumsey

Nikita Rumsey is a student at Harvard Law School.

Four gig drivers, the Service Employees International Union, and the SEIU California State Council renewed their challenge to Proposition 22—the California ballot measure purchased by Uber, Lyft and DoorDash that allows their drivers to be classified as independent contractors—in a California state court this week, after the California Supreme Court had declined to directly take up their case. The state’s high court had denied their request for an emergency order declaring the ballot measure invalid, but permitted the challengers to refile their motion in an “appropriate court.” Their lawsuit claims that the drafters of Prop. 22 improperly attempted to use a statutory initiative to usurp the authority of the state legislature and the courts under the state constitution, including by limiting the legislature’s right to grant workers the right to organize and by preventing drivers from accessing the state’s workers’ compensation program. In addition, the suit alleges that the ballot measure violated a state constitutional provision requiring ballot initiatives to address only a single subject.

Meanwhile, the Biden administration has changed the federal government’s position in a case pending before the U.S. Supreme Court for the second time this week. The latest change came in Cedar Point Nursery v. Hassid, which involves a takings challenge to a California regulation granting union organizers limited access to growers’ private property to speak with farmworkers during non-work time. The United States had filed an amicus brief siding with the employers in early January, but as Acting Solicitor General Elizabeth Prelogar informed the justices, “[f]ollowing the change in Administration, the Department of Justice has reconsidered the government’s position in this case, and the United States is now of the view that the California regulation does not effect a per se taking.” Prelogar noted that the regulation only authorizes temporary and limited access for organizers, which fits safely within Court precedent as a permissible limitation on property owners’ rights to exclude. However, it remains to be seen as to whether the government’s reversal will affect the outcome of the case, which is scheduled to be heard on March 22. Indeed, as senior OnLabor contributor Andrew Strom wrote as part of a detailed critique of the employers’ (and the then-government’s) position in the case, “[g]iven this Court’s track record on matters pitting labor against capital, it’s a good bet that the agribusiness interests will prevail here.” Yet, as he concluded, “it’s hard to see how the Court could justify such an ahistoric concept of Fifth Amendment rights.”

Outside of the courts, mail-in voting is underway at the Amazon facility in Bessemer, Alabama, where 5,800 workers will decide whether to designate RWDSU as their exclusive bargaining representative and form Amazon’s first unionized facility in the U.S. Amid various reports on Amazon’s massive union-busting effort surrounding the election, the Intercept recently noted that Amazon has hired a union-suppression consultant from Seattle-based management-side consulting firm RWP Labor to help persuade Bessemer workers to vote no, and is paying them $3,200 per day for the work. In addition, RWDSU reported that Amazon had also enrolled workers into “classes” where instructors have attempted to scare workers about the dangers of unionization, including false claims that unionization would decrease wages. According to Wired, when workers challenged such claims, some were called to the front of the class where their badges were photographed, apparently for intimidation purposes.

Additionally, SAG-AFTRA has reached an agreement to cover social media influencers, allowing almost anyone who advertises products via their individual social media platforms (like TikTok, Instagram, Facebook or Twitch) to be covered by the union. Although agreement details are still forthcoming, according to SAG-AFTRA, the new agreement would provide a pathway for these uniquely situated workers who produce “influencer-generated branded content” to become union members and qualify for pension and health benefits. Observers have noted that the agreement, while certainly non-traditional, is important as a sign that the union is paying attention to technological changes in the entertainment industry.

In other union-related news, 800 nurses with the Massachusetts Nurses Association have voted to authorize a strike against St. Vincent Hospital in Worcester. As of February 12, nurses had not made a final decision to strike, following unsuccessful negotiations with the hospital management over COVID-19-related safety concerns, and were taking time to make plans before giving its required 10-day notice before taking action. The nurses are objecting to hospital owner Tenet Healthcare’s refusal to address their concerns during the pandemic, including staffing issues and a lack of safety in patient care. Nurses and union officials have argued that Tenet can easily afford to provide their requested improvements and avoid a strike. According to the association, “[i]n 2019, the hospital posted record profits of more than $73 million, a profit margin of 14 percent, four times the state average for hospitals and five times the profit margin for UMass Memorial Medical Center, a facility that provides the staffing levels the nurses at St. Vincent are seeking, while also paying their nurses significantly more and providing better health and pension benefits.”

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