A draft bill set to be introduced in the New York state legislature this week would create a tripartite process for delivery and ride-share workers at companies like Uber and Instacart to “unionize” without being classified as employees. The bill, reportedly backed by the New York State AFL-CIO and supported by the Machinists’ Independent Drivers’ Guild—a possible company union—and the Transport Workers Union, would effectively keep gig-economy workers misclassified as independent contractors, but would enable unions to submit letters of support from 10% of active workers in the industry unit (either ride-share or delivery) to the state for approval as the exclusive bargaining representative for all of the workers in that industry. In particular, apart from the 10% card-check requirement, no vote among unit workers would be required to designate the union as their representative, which, once certified by the state, would be empowered to negotiate work-related standards (including the parameters of a newly established portable benefits fund) governing the entire New York ride-share or delivery industry.
Although Bloomberg has reported that this bill may be the result of years of negotiating between platform service companies and unions over how to provide a unionization pathway for gig workers, the New York legislative initiative emerges at a conspicuous time. Namely, the PRO Act, which passed the House earlier this year and is currently stalled in the Senate with three Democratic holdouts, would amend federal labor law’s definition of “employee” to include the so-called “ABC test” from California’s Dynamex decision (since-abrogated by Prop. 22), essentially making it more likely that ride-share and delivery drivers would be classified as employees for purposes of organizing under the National Labor Relations Act. As a result, many have noted that the New York bill would directly undermine the PRO Act in its effort to extend organizing rights to gig workers. Notably, New York state senator Jessica Ramos (D), who chairs its labor committee, released a statement against the proposed bill:
“Nothing that is done without workers is for workers. As Chair of the Senate Committee on Labor and State Senator to the largest number of TLC licensees in New York, I cannot support legislation crafted without uncompromised worker voices at the table and I will not stand aside while billion-dollar corporations try to legislate the lives of immigrant workers, my neighbors. My neighbors are not second-class workers. We will not legitimize any company union. We will not undermine the PRO Act.”
As reported by Labor Notes, the bill contains numerous provisions that may be cause for concern among workers’ rights advocates. Importantly, the bill would bar workers from using virtually any economic weapon—no strikes, boycotts, slowdowns or pickets—to fight for a fair “sectoral” contract. What’s more, the bill would create a funding mechanism for the unions whereby surcharges paid by customers on rides or deliveries would pass through Uber or Instacart to the union directly, thus leaving it free from financial accountability to its members. Additionally, the bill would make it particularly difficult for workers to decertify an incumbent union as compared to the initial certification process.
As to the bill’s prospects, state assemblywoman and labor committee chair Latoya Joyner (D), in contrast to her senate counterpart, has voiced her support for the proposal. However, similar legislation recently proposed in Connecticut, and likewise backed by that state’s AFL-CIO affiliate, was scrapped after the national AFL-CIO intervened with concerns about the bill’s conflicts with the PRO Act’s potential reforms.
In other news, the Biden administration will grant access to Temporary Protected Status to over 100,000 Haitians residing in the U.S., which will enable them to seek relief from deportation and obtain work authorization. The administration’s decision comes as Haiti struggles with a growing domestic political crisis in addition to its difficulties in stemming the COVID-19 pandemic, and was championed by advocates and applauded by legislators, even including some Republicans.
Meanwhile, in Worcester, Mass., nearly 800 nurses at St. Vincent’s Hospital are entering the 12th week of their strike against Dallas-based Tenet Healthcare, which recently cut-off negotiations and announced its intent to permanently replace the striking nurses after the Massachusetts Nurses Association, the union representing the nurses, rejected Tenet’s latest compromise proposal on changes to staffing levels. According to MNA, St. Vincent nurses had filed over 600 official unsafe staffing level reports to management over the past year, and reported serious adverse effects on patient care as a result of inadequate staffing, excessive patient assignments, and cuts to essential support staff.