Today’s News & Commentary — May 17, 2017

At the New York Times, Gary Rivlin discusses the question of free college, and suggests that the first two years of college should be free for anyone attending a public school (i.e. community college or the first two years of a four-year state school).  The idea comes from Professor Sara Goldrick-Rab, who first laid out her theory in a 2014 paper co-written with Professor Nancy Kendall.  In it, Goldrick-Rab and Kendall proposed the following: “If you complete a high-school degree, you can obtain a 13th and 14th year of education for free in exchange for a modest amount of work while attending school.” The authors pinpointed large sums of federal money, including billions of dollars in Pell grants that have ended up going to for-profit colleges, that could be used to fund their plan.  The proposal is not without its critics, and as Rivlin puts it, “Two years of free college is not a panacea.” However, it “would give more people hope, at least, in an economy that now pretty much requires skills well beyond the ones taught in high school.”

WNYC reports that Rodney Frelinghuysen, the most powerful congressman in New Jersey, wrote a fundraising letter to a board member of a local bank in which he warned the board member about the political activities of one of the bank’s employees. The letter asked Frelinghuysen’s supporters to donate to his next election because he is under attack, and included a handwritten asterisk positing that “One of the ringleaders [of the groups attacking Frelinghuysen] works in your bank!”  Attached to the letter was also a news article quoting the employee, Saily Avelenda, who was later confronted by her boss with both the letter and the article.  According to Avelenda, “I had to write a statement to my CEO, and at my level as an assistant general counsel and a senior vice president, at this employer it was not something that I expected.”  Coverage is also available at the Washington PostNPRand Slate.

Moreover, as a result of Frelinghuysen’s actions, the Campaign for Accountability has filed a complaint with the Office of Congressional Ethics.  According to The Hill, the Campaign for Accountability “noted that that the House Ethics Committee has warned lawmakers that communicating with private businesses could be construed as ‘pressure to take action in order to please the Member.’ ”

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GPS Tracking of Employee Devices: How Much is Too Much?

The distinction between work and leisure time has become increasing hard to identify. As other authors on the blog have demonstrated, technology plays a huge role in collapsing this distinction. Perhaps more disturbing than always being on call is the idea that employers can track employee’s physical whereabouts using GPS tracking. Employers have, with relatively little controversy, frequently placed GPS trackers on employee vehicles. But as electronic devices become more central to employee’s day to day work, employers have taken to tracking these devices as well. Courts have yet to consider GPS tracking of electronic devices, but challenges to these practices are beginning to come before courts.

Arias v. Intermex Wire Transfer is one of the first challenges to GPS tracking of employee smartphones. Intermex required all employees install an app, Xora, which contained a GPS function that allowed the company to track employee’s whereabouts. The plaintiff asked her supervisor whether employee actions off the job would also be tracked. The supervisor told her off duty whereabouts would be tracked, and confirmed that the plaintiff was expected to keep her phone on 24/7 to answer any calls from clients. The plaintiff told her supervisor she was fine with the tracking while she was on duty, but expressed discomfort with being tracked when she was off duty and during the weekends. Plaintiff claims that many other co-workers agreed with her. Ultimately, the plaintiff decided to uninstall the app, and was reprimanded for doing so. A few weeks after uninstalling the app, the plaintiff was fired. Arias sued Intermex for invasion of privacy, violations of the California Constitution and California Labor Code, wrongful violation, and unfair business practices, among other things. The case ultimately settled out of court.

Courts will undoubtedly be hearing more cases like Intermex. Unfortunately, state and federal laws are unlikely to provide much guidance. Consequently, courts will likely have to look to other analogous employer tracking contexts, like cars, to determine how they should address electronic device tracking.

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Today’s News & Commentary — April 3, 2017

The New York Times has a thorough feature about how Uber is using “psychological tricks” to subtly control the drivers who use the service. The article focuses on how the company “solves” the problem of how it cannot exert too much control over its drivers—currently treated as independent contractors—by using inducements: alerts questioning decisions to log out of the app, reminders of monetary goals, and sending drivers their next ride even before their previous ride is over. In turning the app into a video game, the article—and several researchers it cites—argue that Uber is in reality asserting quite a bit of control over drivers.

California Assemblymember Lorena Gonzalez Fletcher plans to introduce a bill allowing gig economy workers—like Uber and Lyft drivers—to unionize, according to the Los Angeles Times. Fletcher introduced a bill last year attempting to do the same, but pulled it after facing both business and labor opposition. The California push comes at the heels of Seattle’s ordinance allowing ride-hailing drivers to unionize and New York City’s informal union affiliation.

Mother Jones has an article providing more detail into how a private prison company put detained immigrants to work without pay, leading to a lawsuit that was certified as a class action a little over a month ago. By using “voluntary” workers, the prison company—the GEO Group—plausibly saved hundreds of thousands of dollars.

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Gig News: In First Uber Classification Arbitration, Driver Ruled Independent Contractor

The Recorder reports that Uber has “successfully persuaded a private arbitrator that a California driver for the transportation company is an independent contractor, not an employee, in the first arbitration in the United States to test that issue.”  While drivers continue to challenge Uber’s mandatory arbitration agreements in court, the arbitrator’s decision represents the outcome of the first of what could become many individual challenges by drivers asserting proper classification as employees, if arbitration agreements are enforced.

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Gig News: October 28, 2016

In a major ruling with widespread implications for gig economy workers in the United Kingdom, an employment tribunal in London found that Uber drivers are not self-employed independent contractors, but rather Uber workers.  The Guardian reports that “the case could open up the technology firm to claims from all of its 40,000 drivers in the UK, and force other companies in the so-called gig economy to review the way that they are employing staff.”  Drivers will now be entitled to the national living wage, as well as paid holidays and paid rest breaks.  Uber is likely to appeal the ruling.

In the United States, Uber has again been sued by drivers in New York who accuse Uber of wage theft.  Bloomberg BNA notes that the drivers originally filed a class action alleging violations of the Fair Labor Standards Act and New York Labor Law, but now four of the drivers “who haven’t opted out of arbitration agreements with Uber, will contend the National Labor Relations Act bars arbitration pacts containing class action waivers” as well as the same substantive FLSA and NY Labor Law violations.  As a result, “the six drivers in the original lawsuit who opted out of arbitration can more quickly move for court consideration of their ‘wage theft’ claims.”  The drivers contend that “Uber’s pay practices mean many drivers working more than eight hours a shift earn less than minimum wage and receive no overtime pay.”

Meanwhile, Uber is moving ahead with the formation of company-funded quasi-unions which will purport to represent drivers and yet promise not to strike.  According to Josh Eidelson of Bloomberg Businessweek, the Uber-funded Independent Drivers Guild was launched in partnership with the International Association of Machinists and Aerospace Workers (IAM) and claims to represent all 40,000+ Uber divers in New York City in arbitration hearings challenging driver deactivation, and also offers “such perks as discounted legal assistance and chances to air grievances at monthly meetings with Uber officials.”  However, the IDG wasn’t voted for by drivers and has no collective bargaining agreement, and some argue it represents an effort by Uber to resist true unionization.

Uber, the Gig Economy, and Labor

OnLabor will soon launch a new feature providing coverage of labor news from the “gig” – or “sharing” – economy.  Similar to our Fast Food News feature, Gig News will consolidate stories with important labor implications from these emerging sectors of the labor market.

In anticipation of our first installment, it is worth posting here Judge Chen’s recent order denying Uber Technologies’ motion for summary judgement in Uber Technologies, Inc. v. O’Connor.  The question in this litigation is the fundamental one: are Uber drivers employees or independent contractors?  Proceeding under California law, and applying the Borello standard, Judge Chen holds that the “most significant consideration” in a case like this one is the putative employer’s “right to control the work details.”  After an extensive review of the record – one that provides an illuminating picture of Uber and the relationship between Uber and its drivers – Judge Chen determines that “the Court cannot conclude as a matter of law that Plaintiffs are Uber’s independent contractors rather than their employees” and so he denies Uber’s summary judgment motion.  Along the way, Judge Chen rejects many of Uber’s primary claims, including that Uber is a “technology company” rather than a “transportation company.”

Perhaps the highlight of the order comes when the court addresses Uber’s assertion that it does not monitor drivers sufficiently to warrant a finding of employment.  Judge Chen writes:

Uber drivers . . . are monitored by Uber customers (for Uber’s benefit, as Uber uses the customer rankings to make decisions regarding which drivers to fire) during each and every ride they give, and Uber’s application data can similarly be used to constantly monitor certain aspects of a driver’s behavior. This level of monitoring, where drivers are potentially observable at all times, arguably gives Uber a tremendous amount of control over the ‘manner and means’ of its drivers’ performance.

The citation for this part of the court’s holding?  A cf. to Michel Foucalt’s, Discipline and Punish.

This will be an interesting case to watch, one with critical implications for gig and sharing economy jobs.  We’ll have updates as the litigation progresses.