Lost in the extensive coverage of Travis Kalanick’s resignation is the news that Uber is adding an in-app tip option. According to the Washington Post, the option is already available in Houston, Minneapolis, and Seattle, and should be part of the app nationwide by the end of July. The move comes on the heels of the Independent Drivers’ Guild’s successful effort to have New York’s Taxi and Limousine Commission propose an in-app tip option requirement in New York City. Uber has styled the new policy part of its “180 Days of Change” – a campaign that Uber described this way in an email to drivers:
For the next 180 days (and beyond), we’ll be making meaningful changes to the driving experience. Some changes will be big, some will be smallーall will be changes drivers have asked for.
Why now? Because it’s the right thing to do, it’s long overdue, and there’s no time like the present. This is just the beginning. We know there’s a long road ahead, but we won’t stop until we get there.
The answer: No.
Through Shahani’s reporting, Uber drivers give clear voice to the key legal arguments about employment status. The picture of control that emerges from these interviews is unmistakable. It’s a terrific piece – and a highly recommended listen.
The Department of Labor announced today that it has withdrawn two memos (so-called Administrator’s Interpretations, or AIs) issued by David Weil’s Wage and Hour Division in 2015 and 2106. The first AI concerned the definition of employment under the Fair Labor Standards Act and helpfully clarified existing law regarding the distinction between employees and independent contractors. The second AI dealt with the related question of how to determine joint employment relationships under the Fair Labor Standards Act and the Migrant and Seasonal Worker Protection Act. We analyzed (and lauded) the first AI here and the second one here. The DOL appears to have removed the AI’s from their website; they’ll remain available here and here.
Two points. First, the AIs interpret existing law – they don’t make new law – and so the DOL’s action today doesn’t formally change anything. Second, removing the Weil memos does, however, signal the direction that this Department of Labor intends to head. For one thing, it indicates that Acosta’s DOL may refuse to interpret broadly the definitions of employment and joint employment under statutes that are meant to be read broadly. For another thing, it indicates a backtracking on the Department’s efforts to provide compliance assistance in two critical, and complicated, areas of employment law.
It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement. This important work is underway, with contributions from academics, labor lawyers, union organizers, and others. Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review. Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed. This kind of optimism is necessary to visionary thinking, and it’s badly needed today.
But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years. Most of us know much of this already, so you might wonder what the point of such a morose exercise would be. The idea is not to wallow. To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”
Some caveats. One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely. Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts. Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible. For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).
All that said, here’s what seems within the realm of the plausible: Continue reading
Notable that as commentators in the U.S. call for a move from enterprise to sectoral-level bargaining, relying in part on the the French example, France’s new President wants his country to move from sectoral to enterprise-level bargaining.
In an interview published last week in Seminarian Casual, Justice Alito offered some important remarks about work-life balance. Asked how he has managed to balance “work and family life,” Alito answered:
I have been fortunate to have jobs that allowed me to control my work schedule to a very great degree. As an appellate judge, I have had to work very long hours, but I have largely been able to choose when and where I have done my work. I think I attended just about every one of my kids’ athletic events, concerts, and school programs. That often meant saving my work for late at night and weekends, but I was able to do that. Very few people today have this luxury, and it is hard for busy people to balance work and family life. Our society needs to do a better job of making this possible.
As OnLabor readers will be aware, unions play a critical role in making possible the kind of life that Alito rightly celebrates. Evidence for this union effect is available here, here, here, here and here. Alito himself has the capacity to enable unions to play this role, and thus to ensure that our society does a better job allowing more of us to balance work and family life.
(Thanks to Andrew Strom for calling this to our attention.)
Michael Grabell’s New Yorker piece on Case Farms’ poultry plants is a must-read. Much of it will be depressingly familiar: horrid safety and health conditions (“since 2010, more than seven hundred and fifty processing workers have suffered amputations”); repeated use of immigration sanctions to deter organizing activity (“the union received a letter saying that it had come to the company’s attention that nine of its employees might not be legally authorized to work in the United States…[s]even were on the union organizing committee…[a]ll were fired”; food workers wearing diapers because they aren’t granted bathroom breaks. But in this 2017 version of The Jungle, one wonders how – if at all – the relevant federal agencies will respond. Hopefully not, as Grabell rightly worries, by increasing immigration enforcement during labor disputes.