Can Gig Workers Take Advantage of Independent Contractor Status?

Striking Drivers Monday in Los Angeles

Washington        At Georgetown University Professor Joseph McCartin showed some bite-sized clips from “The Organizer” documentary and followed up with questions he posed, as well as a variety that came from the audience.  One former union brother launched a rant that bemoaned the loss of workers’ weapons dating back to the passage of the Taft-Hartley Act curtailing unions since 1947, more than 70 years ago.  Secondary boycotts were outlawed, no-strike agreements became standard, dues provisions became a matter of state legislation crippling income for many unions, and the closed shop was made illegal.  His message stated plaintively was that unions and workers needed to break the law to have power.

It wasn’t a question, so there was no need to provide an answer, though I used it as another opening to advocate for organizing the growing number of informal workers proliferating both developed economies and dominating job development in emerging national economies globally.  Reading about the efforts of Uber, Lyft, Handy, and the host of other app-based tech companies in the so-called gig economy to go around various state and federal classifications of their work force as independent contractors rather than employees started me thinking about his rant from another perspective.

Here is what the companies have been doing pretty successfully according to a recent report by both the New York Times and the National Employment Law Project.  In the legislation that Uber and Lyft backed to legalize their business, they often sought provisions indicating that ride-hailing drivers are contractors. About 25 states have now enacted such provisions, known as carve-outs. In other states, like Texas most recently, Uber and Lyft worked with a broader group of companies to have most gig workers who are dispatched through digital platforms, not just drivers, classified as contractors.

Without clear federal protections and preemptions, it’s the same state by state anarchy that we find in minimum wages, public employee bargaining, and a host of other worker protections.  None of that is good for workers, but I wonder if there is an unintended consequence of this legislative attack on workers that could be a potential organizing opportunity?

My Georgetown interlocutor called for workers to “break the law.”  Is there potential for more innovative and dramatic action when workers are in fact no longer covered by laws that regulate workers?  An independent contractor is by definition, even if inaccurate, independent.  Restraints and regulations for workers, correctly classified as employees and finding themselves covered by the National Labor Relations Act, prescribe the avenues of action for their organizations.  For groups of workers who are not employees, such restrictions melt away.

Years ago, our union, Local 100 United Labor Unions, successfully organized garbage truck laborers in New Orleans, Dallas, and other cities who were employed by city garbage services or contractors through temporary employment agencies as casual laborers.  There is in fact an NLRB test for allowing such workers to achieve elections and bargaining rights.  As casual and temporary laborers they were similar to independent contractors, and we flipped their powerless on the companies during a stalemate in bargaining, when the majority didn’t “feel” like going to work in July and garbage wasn’t collected and began to pile up.  Was it a strike?  No.  There was no mandatory requirement or guarantee for work or hours given to these hoppers.  They could come and go as they chose.  We finalized the contract at 11pm on that Friday night more than doubling wages making them perhaps the highest paid garbage laborers in the country and the subject of a front-page story in the Wall Street Journal.

If “gig workers,” using classic organizing methodology coupled with social media networking, could be organized to act collectively, then the repertoire of potential tactics and strategies available for such workers in states, where the companies have now successfully and sneakily had them declared as independent contractors and not employees, are as wide open as the wild west again.

A news item is flashing in from the West Coast in fact:

…drivers are on strike in Los Angeles, protesting a 25-percent cut to their pay per mile. Hundreds of Uber and Lyft drivers in Los Angeles went on strike at 12:01 a.m. Monday, shutting off their apps for 25 hours to protest Uber’s recent 25 percent cut in per-mile pay in their area.

If any workers dispatched by an app in Texas and some other states is now an independent contractor, then if enough workers turn off their apps or simply don’t respond, a company could be crippled until it conceded.  It wouldn’t be easy, but where there is no law, there is also worker opportunity for collective action.

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Good News for Mexican Workers on the Other Side of the Wall

Striking workers

New Orleans    How about some good news for a change?  Yes, I’m with you.  I found some in a surprising place on the other side of the proposed wall between Mexico and the Untied States and in all places in Matamoros, right across the river from Brownsville, Texas.

If you’ve ever been to Matamoros, you already know that they are desperate for some good news down there on the other side of the Rio Grande Valley.  The city has a special place for me because a million years ago it offered my first experiences in that great country.  I was driving down there in one of my old junkers with a dog and a tent curious about the valley and came across the bridge from Brownsville for several hours into another world.  More recently in another century, we drove through the city after Katrina headed toward the central high plains of Mexico, but I’m still shocked to read that Brownsville reportedly has 500,000 residents now.

What doesn’t shock me is the fact that a key driver of the city’s economy is its proximity to the United States and the maquila plants that fabricate all manner of things for export back to the US.  It almost goes without saying, but I’ll be Mr. Obvious, that the attraction for foreign manufactures is cheap labor.  The good news though is that something is being done about all of this partly due to the election of the left leaning new president, universally called AMLO, Andrés Manuel López Obrador, who has created the climate for more worker justice and fair labor laws.  He has proposed raising the minimum wage national by 16% to around $5,30 a day and on the border to $9.20 a day.  Maquiladoras earn about $2.40 per hour compared to US manufacturing workers make more than $20 per hour by comparison.

Mostly though it has to do with a wave of strikes by over 55,000 maquiladoras in the 115 plants around Matamoras demanding 20/32:  a 20% wage increase and a one-time bonus of 32,000 pesos or $1655.   This has become a movement and according to many including Susana Prieto, a lawyer and one of the strike’s primary backers and organizers, 85 companies have settled while five are still on strike, including Coca-Cola.  Prieto, an advocate of an independent labor movement given the past record of the traditional, party-connected union federation, is hoping to push the movement to expand to other border cities, including Juarez where she has practiced labor law and led successful strikes in recent years.

According to the Wall Street Journal these strikes are spreading.   Walmart, the largest private sector employer and a determinedly anti-union force globally, recently “reached an agreement with a union representing some 6,500 workers to grant a 5.5% wage rise and a productivity bonus, the company said. Workers had recently demanded a 20% rise among other benefits.”

Let’s hope this movement comes north!

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