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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Is the Gig Up or Down?

New Orleans      With statistical unemployment below 4% for the first time in years, economists, policy makers, politicians, and self-interested hucksters have found something new to throw statistics at each other backwards and forwards:  is the gig economy growing or slowing?  At many levels one might say it depends on who you ask.  At another level one has to worry about why it matters to the drum beaters.

So, just to review the field of battle for a minute.  The respected Economic Policy Institute in Washington weighed in recently that the gig economy was so marginal it was basically only worth a side room in an academic convention amounting to less than 1% of the jobs in the economy.  The federal Bureau of Labor Statistics trying to update its figures put the number higher than that but way less than double figures and cast doubt on whether the level of such employment was rising or falling.  Others argued that the BLS statistics were an undercount citing the almost 70% of Uber drivers who are not counted by BLS because they have payroll jobs, and Uber is their side gig, so to speak.  Gig promoters claim that more than one-third of the USA labor force is involved in some form of contract or freelance work.  No one disputes the fact that contingent, subcontract and temporary labor is huge, but sorting it out is guaranteed a migraine.

Let’s look at why it matters, big or small.

There’s a continuing push by the giggers to get changes in labor law protections, and that’s not good news for anyone but the giggers themselves who are trying to compete with more established employers in the same industries by sweating the labor of their workers.  Not having to pay social security, unemployment, health benefits and the rest of the package and instead pushing the costs over to the workers themselves saves a ton of money, if you are allowed to get away with it.  The whole point of Uber-kind businesses is in fact to get away with it, which is why they continue to fight here and abroad against any finding that they are responsible for their workforce and not simply an internet application.

It also matters when the bean counters determine how big the number is of fulltime gig workers, because these are workers who represent a long-term time bomb on society if they lack sufficient Social Security benefits to support themselves when they outlive their gigs.  A significant change in the composition of the workforce creates a burden that companies want to shed by passing their responsibility over to the rest of us.

Some good news came from an unexpected front in a southern California ruling against the Cheesecake Factory restaurant chain when they were hit along with their janitorial subcontractor for over $4 million on wage theft claims because workers were denied breaks and forced to work unpaid overtime hours before being released from the shift by Cheesecake managers.  Having employing companies held responsible for subcontractor violations could set precedents that protect contingent and temporary workers as well as gig workers.

We need a lot more victories along the Cheesecake lines because whether the number is huge or small we need to force these kinds of business in another direction where protection of workers’ rights and benefits is still part of the business model.

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Thanks to KABF.

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