Labor had a banner year in California — now will workers unionize?
https://www.elkgrovenews.net/2019/09/labor-had-banner-year-in-california-now.html
Uber driver Luke Rivera stands in front of the Capitol holding an American flag during a rally supporting AB 5 and the right for independent contractors to unionize on July 9, 2019. Rivera chose to participate ‘In protest of Uber and Lyft because of their manipulative and deceptive business practices,’ he said.(Photo by Anne Wernikofffor CalMatters.) |
By Judy Lin and Ben Christopher, CalMatters |
Last
summer, after the U.S. Supreme Court ruled public-sector unions couldn’t compel
fees from nonunion workers, the talk was that organized labor had been hit hard, was
facing a mass exodus, and was playing
defense even in pro-labor California.
Talk
about a comeback.
This
week, as state lawmakers wrap up for the year, labor is celebrating a banner
year in Sacramento: New restrictions on California charter
schools at the behest of the teachers unions. A bill to allow unionization for childcare workers. And on
Wednesday, the signing of AB 5, a nationally watched
measure converting 1 million California freelancers into employees while
granting them a suite of protections along with the right to join unions. The
bill takes effect Jan. 1.
The
turnaround is no accident. After the U.S. Supreme Court’s dues-gutting decision
in the case of Janus v. AFSCME,
labor went into political overdrive last
year in California, pushing a series of bills through the Legislature that,
among other things, forced state and local governments to give unions access to
newly hired public employees.
That helped shore up membership — and dues — in the influential unions
that represent teachers and government workers. But experts say labor still has
its work cut out, even with the passage of AB 5, touted as a path to more job
security for gig economy workers.
While the
bill is at once potentially transformative, it is also filled with
complications and pitfalls, said Stanford law professor William Gould, a former
National Labor Relations Board chairman. Uber, Lyft and DoorDash have put $90 million toward seeking an end
run around it. In his signing statement, Newsom alluded cryptically
to what may be an Achilles’ heel in the legislation: the fact that, however
California regards its 200,000-plus gig workers, the federal government still
categorizes them as freelancers.
And it
remains to be seen whether unions, even in California, can turn a paper victory
into a meaningful labor movement that results in more private-sector
members.
Union
membership has fallen to a historic low as a share of the state’s workforce.
According to the Bureau of Labor Statistics, the unionization rate
here is 50% in the public sector and just 8.3% in the private
sector.
“It
depends on the energy that the unions put into organizing the unorganized,”
Gould said in an interview. “From the ‘40s to the ‘60s, the unions were
spending approximately 30% of their budget on organizing. Today, it’s about 3%.
So it depends on the ability of labor to take AB 5 to the next step, which is
to organize and create an effective mechanism.”
Gould
uses the farmworkers movement as a cautionary tale. Though California passed
the Agricultural Labor Relations Act in 1975, making it the first state to
establish collective bargaining rights for farmworkers, most fields today are
not unionized.
“That
whole movement now and the law supporting it is completely moribund. For all
intensive purposes, it doesn’t exist,” Gould said. “There is no union
organizing in agricultural even though more than 95% of the fields are
nonunion. The lessons of the past, of which the Agricultural Labor Relations
Act and the farm labor movement is a prime example, is that paper mechanisms
don’t necessarily translate into real gains.”
Looking
back, the tide turned for labor almost immediately after Janus came
down. Last year was a gubernatorial year, so the teachers union endorsed
then-candidate Gavin Newsom over Antonio Villaraigosa, the former mayor of Los
Angeles who was backed by charter school boosters. In the Legislature,
Democrats made record gains.
Meanwhile,
perhaps by serendipity, the California Supreme Court gave them another judicial
shot of momentum. Ruling in an outsourcing lawsuit brought by a same-day
courier service, Dynamex Operations West, Inc. v Superior Court of Los
Angeles, the state high court made it more difficult for businesses to
classify workers as independent contractors, thereby saving on payroll.
The
ruling established a three-part test, or ABC test, for certifying freelancers
with the highest hurdle that the work performed must be outside the core of the
company’s business. The Legislature could have immediately codified it, but
Senate President Pro Tem Toni Atkins told members she wanted to allow a robust
debate.
What
followed was a benchmark year for labor unions that could significantly expand
collective bargaining in the private sector, which has been on the decline for
decades.
Labor
leaders and their political allies believe that with an increasing wealth gap
and automation, burgeoning campaigns such as the Fight for $15, Restaurant Opportunities Centers (ROC) United, Gig Workers Rising and Mobile Workers
Alliance are pivotal for the future of workers.
“For so
long, we had focused so much on public sector unions — and we’re going to
continue to defend and protect those — but we’re also going to look at the
private sector,” said Assemblywoman Lorena Gonzalez, AB 5’s author. “We see
income inequality growing at staggering paces and a lot of that is the
narrowing number of unions in the private sector. There was a desire to push
back and go hard.”
Steve Smith,
a spokesman for the California Labor Federation, an umbrella organization
representing 2 million members, said labor has always advocated for workers
regardless of whether they’re members. In California, unions helped pass paid
family leave and the $15 minimum wage, making the state the first to offer such
benefits.
Similarly, workers ranging from gig workers, truckers, janitors
and health aides, all stand to benefit from AB 5. Labor leaders note that
rideshare drivers are scrambling to make ends meet, jumping from one app to
another to cobble enough earnings, or sleeping in their vehicles as
an ever bigger slice of their fares goes to Lyft or Uber.
In
shifting workers to employee status, companies would have to offer basic worker
protections such as guaranteed minimum wage, overtime pay, contributions to
Social Security and Medicare, unemployment and disability insurance as well as
workers’ compensation, sick leave and family leave.
“The
protection they’re going to get under AB 5 is going to be a vast improvement,”
said Bob Schoonover, president of the Service Employees International Union
Local 721, which represents 95,000 public employee workers in Southern
California. Among those protections: the right for cities and the state to sue
over violations, a strong tool for enforcement.
But there
also are asterisks, among them a state-federal schism that the governor and
some labor leaders say will require additional legislation. In their view,
because federal labor laws treat gig workers as freelancers, there’s a need —
and an opportunity — for the state to
craft something new, perhaps modeled after the Agricultural Labor Relations Act, to
ensure the state’s new rights for gig workers won’t be preempted.
“The
attorneys have told us it would take something else in California for them to
be able to organize,” Schoonover said.
Meanwhile,
companies from tech to trucking vow to continue their resistance. On the same
day lawmakers passed AB 5, Lyft and Uber said they would fight the court’s
year-old Dynamex decision at the ballot box in seeking an end-run around AB 5.
Uber’s chief legal counsel Tony West said the company believes it can pass the stricter standard for contract workers, known as the ABC test, because drivers
are not core to its business.
“Under
that three-part test, arguably the highest bar is that a company must prove
that contractors are doing work ‘outside the usual course’ of its business,”
West told reporters. “Several previous rulings have found that drivers’ work is
outside the usual course of Uber’s business, which is serving as a technology
platform for several different types of digital marketplaces.”
Technological
workarounds could also undermine unions.
“They’re
fighting a 20th Century battle in the 21st Century,” said GOP political
consultant Mike Madrid. “What labor is trying to do is create an organizable
workforce in an era when all of human activity is moving into the opposite
direction.”
Businesses,
Madrid said, will simply look to automation, including driverless cars, to get
around workers and laws such as AB 5.
Republican lawmakers also criticize AB 5 for netting workers they
consider to be legitimate independent contractors such
as foresters, health care professionals, physical therapists, interpreters,
translators, single-truck operators, and even musicians and nonprofits.
But GOP
members have been marginalized in the Trump resistance state. In a particularly heated
exchange in the Senate on the final day of session, Sen. Jeff Stone, a
Republican from Temecula, accused his more liberal colleagues of thwarting “the
will of the voters in the name of big labor union bosses” and decried union
“control” of the body.
That
prompted a reprimand of incivility, which in turn led to cries of bullying,
lecturing and personal attacks. Deliberations were temporarily put on hold to
let things cool things down.
Organized
labor didn’t get 100% of this year’s wish list: A bill that would have let
striking workers collect unemployment benefits and a proposed ballot measure to
restrict public university’s use of independent contractors both failed.
But 2019
does represent a legislative high-water mark. Besides AB 5, unions could also
see their ranks swell with a bill, now on the governor’s desk, that would give
40,000 childcare workers who serve parents that receive state subsidies the
right to collectively bargain. This is the tenth time labor activists have
introduced the proposal, but with “Governor Dad,” they’re optimistic it
may get signed.
Other
high priority union wins included restrictions on the expansion of public
charter schools (where teachers are typically non-union) and limitations on
mandatory arbitration as a condition of employment (which could make it easier
for workers to file class action lawsuits).
So far,
Californians are supportive. A survey out this week by Emerson Polling found
50% support giving gig workers employee status, compared to 24% opposed and 27%
undecided.
And
workers are hopeful. Oakland resident Luke Rivera, 39, who drives about 30
hours a week for Uber, said aspires to be like his uncle, whose work as a long-haul
truck driver represented by the Teamsters supported a home and a family.
“When he
passed away 5 years ago, he had a million dollars saved up from driving a
truck,” said Rivera. “We want the opportunity to work our butts off and say,
‘God dang it, I was able to save a million dollars in my lifetime.’”
CalMatters.org is a nonprofit, nonpartisan
media venture explaining California policies and politics.
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