More Worker Protections Still Require More Worker Representation

Toronto    Continuing to look at the extensive labor protections workers gained thanks to demands and lobbying of unions in Ontario and, surprisingly, the Liberal government, is nothing short of amazing.  Digging deeper after hearing of the recent success from John Cartwright, president of the Toronto – York Labour Council, I found the following goodies for workers in new law:

— Casual, part-time, temporary and seasonal employees will be given the same pay as full-time employees for doing equal work. There are exemptions based on seniority and merit.

— Once an employee works for a company for five years, they will be entitled to three weeks of paid vacation.

— Personal emergency leave no longer only applies to workers at companies with 50 or more employees. All workers will get 10 days per year, two of them paid.

— Victims of domestic or sexual violence, or parents of children who have experienced or are threatened with it, will get five days of paid leave and 17 weeks of job-protected, unpaid leave.

— Employers will not be allowed to request a sick note from an employee taking personal emergency leave.

— Parents whose children die will get unpaid leave of up to 104 weeks. It was previously only offered to parents when a child’s death was related to a crime.

— Employers must pay three hours of wages if they cancel a shift with fewer than 48 hours notice, with weather-dependent work exempted.

— Employees can refuse shifts without repercussion if the employer gives them less than four days notice.

— Employees on call must be paid three hours at their regular pay rate.

— Companies that misclassify workers as “independent contractors” instead of employees in order to skirt labour law obligations would be subject to fines.

— The maximum fine for employers who violate employment standards laws will be increased from $250, $500 and $1,000 for various violations to $350, $700 and $1,500. The government will publish the names of those who are fined.

And, remember this doesn’t include the additional organizing protections workers have received of the increase in the minimum wage in Ontario, Canada, now fast tracked to January 1, 2019 at $15.00 per hour.  Some might ask, who needs a union though once these protections are in place?

One answer might be:  To get these protections and more, and to keep them as governments come and go.  The other answer though is that without representation and collective organization, many of these new rights will be unknown and therefore unrealized by workers.  There will always be more employers, through ignore or design, who will ignore workers’ rights, and too few government enforcers to make them toe the line, which means representation on the job and collective action will become even more important now in moving these new legal obligations into the permanent culture of work and daily expectation of all workers.

The other huge opportunity would seem to be in organizing informal workers who are largely out of the reach of traditional union organizing.  With this package of new laws in Ontario, a rights-based workers association is desperately needed to allow workers to access these provisions and convert them into permanent entitlements.

There’s a loud whistle blowing, I hope a lot of organizations hear it and move to the sound.

 

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Looking More Closely at the NLRB’s New Joint Employer Standard

10666801h1290937*750xx900-507-0-0Kiln, Mississippi    Lawyers on all sides of the issue will have millions of words and make millions of dollars parsing, arguing, advocating, and appealing the National Labor Relations Board (NLRB) decision to establish a new standard to determine what constitutes joint employer status, but for many workers and, to modify an old expression, the organizers that love them, let’s take a closer look at the actual decision and see what it offers in plain and simple instructions about how to determine whether or not joint employer status exists. Luckily, the decision is written very carefully in the expectation of appeals, so it rewards closer review.

I enjoyed the fact that the NLRB broke through the legal mumbo-jumbo to clearly state in so many words that this was an 800-pound gorilla of a problem too large to continue to ignore. Embedded in the decision is the reality of the modern evisceration of a stable workplace. The Board notes that contingent work now represents 4.1% of total employment in the USA or 5.7 million workers. Temporary employment is 2% of total employment and another 2.87 million workers. On the coasts they can prattle about the new so-called “gig” economy, but the NLRB makes it clear with these numbers that such workers are working without any net of protection or in most situations representation. Without expressly saying so, the NLRB essentially is refusing to continue to support a fiction that unions have any practical or proportionate power at the bargaining table, despite there being a long standing standard for how unions can organize temporary workers that determines the bargaining unit based on an average of hours worked over succeeding 13 week periods averaging the required minimum hours in that period to not be considered casual, but to be determined as employees, albeit temporary.

As we have frequently noted, the new standard elevates indirect control and authority, even if not explicitly exercised, to the status of joint employment. In determining under the new standard whether or not a company is a joint employer with their subcontractors of course setting wages and hours is the brightest line. The NLRB adds to those potential tests the question of whether or not the company establishes the number of workers on the job, has input or authority around scheduling, seniority, overtime, or assigning work and standards. The examples in the decision not only from the Browning-Ferris case under review but also others that are mentioned are very helpful, and include, not surprisingly, examples of how building owners effectively control the janitors working for cleaning companies.

These examples add other “tests” worth listening for including when a contractor recommends discipline or termination of individual workers, rules mandating that a subcontractor worker cannot be paid more than the contractor’s own employees doing similar work, determining when the machines operated by the subcontractor workers turn on or off, and drug, professional, and other testing requirements for subcontract workers. All of these conditions were evident in this BFI recycling case, but many organizers will also recognize many of them as common in representative situations. I can’t even count the number of grievances we have handled in buildings, on garbage trucks, in university cafeterias, school yards, and elsewhere where Local 100 is opposing a termination in the final step and being greeted by a shrug from an employer that the property owner had demanded the action for one reason or another so what choice did they have other than to do what the real boss said or lose the contract. Where there are multiple locations, it often has meant that we agree to reassign the worker away from a problematic worksite or supervisor. I will never forget winning a case for a worker years ago at Tulane University where a Tulane administrator wanted a young woman fired because she didn’t smile enough on the cafeteria line. On that one Tulane had to eat it, so to speak, and she became an outstanding steward for us and a union organizer who had great success in organizing California home care workers for several years.

Franchisee operators can sweat this new decision, but they are not mentioned anywhere. The real beneficiaries immediately are these millions of workers in contingent and temporary employment who are little more than working scams where someone bigger wanted to sweat the same work down to lower wages, less liability and workman’s compensation. The decision changes the game allowing the union, if and when there is one, to force the real employer to the table to bargain on those issues where they have or are exercising control.

As long as it lasts, we’re catching a major break for millions of workers here, if we’re willing and able to do the work to get them organized.

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