Uber Adds a Tip Option

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.

 

Daily News & Com­men­tary — June 21, 2017

Yesterday, Travis Kalanick resigned from his post as chief executive at Uber following a series of scandals concerning the company’s workplace culture and legal problems.  Earlier on Tuesday, a group of investors insisted Kalanick step down in a joint letter.  Kalanick will continue to serve on Uber’s board.  Read more here.

The White House announced that President Trump will nominate Marvin Kaplan to the National Labor Relations Board.  Kaplan currently serves as independent counsel at the Occupational Safety and Health Review Commission.  Previously, he served as counsel on the Republican staff of the House Committee on Education and the Workforce.  With two vacancies at the Board and Democrats controlling two of the three filled seats, this announcement puts President Trump on the path to creating a Republican majority at the NLRB.  A Republican controlled Board could rollback many Obama era decisions.  President Trump will also nominate Patrick Pizzella to fill the role of Deputy Secretary at the Department of Labor.  

In international news, the New York Times reported that Laurent Berger, the leader of the French Democratic Confederation of Labor, might be willing to work with the French government to update the country’s labor code.  Berger suggests that President Emmanuel Macron’s victory may provide an opportunity for reform.  Macron has championed “flexible security,” an economic model originating in Denmark.  The system aims to foster agreement between management and labor and reduce unemployment.  While some of Macron’s proposed reforms are likely to face stiff opposition from unions, Berger’s belief that “‘in a globalized world, the economy must be able to adjust” provides hope for the reform effort.  Read more here.     Continue reading

NPR’s Aarti Shahani asks Uber drivers: Do You Feel Like Your Own Boss?

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.

A Missed Opportunity: Worker Voice in Portable Benefits

Last week, Senator Mark Warner and Rep. Suzan DelBene introduced the Portable Benefits for Independent Workers Pilot Program Act.  The Act would authorize $20 million for competitive grants to states, local governments and nonprofits to fund pilot projects around portable benefits. The program aims to provide wide latitude for grantees to experiment with innovative new models of providing benefits for workers outside of “traditional full-time employment.”  The only requirements seem to be that the pilot programs: (1) provide benefits that are usually available to “traditional full-time employees,” but are not retirement benefits; (2) allow accumulated benefits to be portable from one job to another; (3) accept contributions from more than one job; and (4) be scalable to a national program. With this legislation, Senator Warner demonstrates again why he is considered a Congressional leader in thinking seriously about the policy implications of the gig economy.

The proposal is a serious attempt to address the needs of the growing number of American workers who lack even the most basic employment benefits — workers comp, unemployment insurance and paid leave. Too many workers are rendered economically vulnerable, not only because of the precarious nature of their paychecks, but because of lack of access to the safety net to catch them when those paychecks diminish or stop coming. New ways of accessing traditional safety net benefits would be a step up for these workers.

Senator Warner’s proposal leaves open many important questions about the optimal features of a portable benefits program – who pays, how much should contributions be, and how can we prevent such programs from encouraging the misclassification of employees as independent contractors.  Before we move a major national program, we will have to answer these important questions.  I can see the value in Senator Warner’s proposal as a vehicle for moving those debates forward.

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Today’s News & Commentary — May 30, 2017

Uber and Lyft returned to Austin, TX on Monday after Texas Governor Greg Abbott signed HB 100 into law, eliminating Austin’s fingerprint requirements for drivers.  As the LA Times describes, the bill designates the state, not local, government as the regulator of the “ride-hailing industry.”  Uber and Lyft left Austin in May of 2016 after losing Proposition 1—Austin voters decided (56% to 44%) not to allow Uber and Lyft to continue using their existing background check systems.  Governor Abbott called HB 100’s passage a “celebration of freedom and free enterprise.”  Austin Mayor Steve Adler, in contrast, was “disappointed” and expressed his “hope that [Uber and Lyft] return ready to compete in a way that reflects Austin’s values.”

Last Thursday, the Court of Appeals for the Second Circuit agreed to hear en banc Zarda v. Altitude Express, 855 F.3d 76 (2d Cir. 2017), a case which held that Title VII’s ban on sex discrimination does not protect against sexual orientation discrimination.  As we have covered in a previous post, this issue has been addressed, and decided to the contrary, by the Seventh Circuit.  Notably, the Seventh Circuit’s ruling produced a split with the Eleventh Circuit (Evans v. Georgia Regional Hospital, 850 F.3d 1248 (11th Cir. 2017)).  Zarda’s case was originally dismissed on summary motion pursuant to Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), another Second Circuit case holding that Title VII does not proscribe sexual orientation discrimination.  On appeal, the Second Circuit panel refused Zarda’s argument that it overrule Simonton, citing Christiansen v. Omnicon Group, 852 F.3d 195 (2d Cir. 2017) (court permitted an openly gay employee to pursue a Title VII claim, but on a sex-stereotyping, not sexual orientation discrimination, theory) for the proposition that only the en banc panel of the Court or SCOTUS could reverse circuit precedent.  Oral argument in the case will take place this September.

On Friday, a New Jersey judge denied the Jersey City teachers union’s motion to dismiss a lawsuit, brought by two NJ residents working with the Goldwater Institute (a conservative think tank), challenging the district’s “release time” policy as violative of the New Jersey Constitution.  The policy allows two top union officials to work exclusively on union activities while being paid by the district.  The suit alleges that “release time” is prohibited by the state Constitution’s ban on local governments giving gifts to individuals or entities.

Last Thursday, Rep. Phil Roe (R-Tenn.) reintroduced the Employee Rights Act (ERA).  The bill, if passed, would amend the NLRA to, among other things, require secret ballot elections in employee unionization decisions; require unionized workers to hold periodic secret ballot elections to verify a continued desire to be represented by the union; empower the NLRB to de-certify unions for intimidating members; criminalize union threats; and require unions to receive affirmative permission from members to use payments toward political spending.  Rep. Roe described the ERA as neither “pro- or anti-union,” but rather, “a commonsense measure to ensure a transparent and fair workplace.”

Gig News: NLJ Update on Gig Economy Legislation and Lawsuits

Last week, The National Law Journal published an update on state legislation and lawsuits regarding the classification of gig economy workers as independent contractors.

First, the article noted that the Florida Legislature has passed a bill, expected to be signed into law by Governor Rick Scott, “that classifies drivers for companies such as Uber and Lyft as independent contractors rather than employees, marking the latest state to attempt to regulate the rapidly growing and litigious ride-hailing workforce.”  Other states that have passed similar legislation include Arkansas, West Virginia and Colorado.

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Are Lyft and Pepsi Playing the Same Game?

Recently, following swift and widespread backlash, Pepsi pulled an advertisement that was accused of co-opting imagery from Black Lives Matter protests and other social movements. The advertisement’s storyline centered on model Kendall Jenner abandoning a photo shoot to join a parade of ethnically diverse models carrying ambiguous posters painted with peace signs, love written backward in Arabic, and vague invitations to “join the conversation.” At the end of the commercial Jenner, a white woman, pushes past the protesters-of-color who invited her to the demonstration, and offers a police officer a Pepsi. The officer opens the can and the crowd erupts in triumphant hugging. Responses to the ad included a tweet from Martin Luther King’s daughter that read “If only Daddy would have known about the power of #Pepsi.” After initially defending the commercial, Pepsi issued a statement saying, “Clearly, we missed the mark, and we apologize. We did not intend to make light of any serious issue.”

Pepsi’s advertisement is just the most recent in a series of corporate attempts to capitalize on the current political moment. While Pepsi did “miss the mark,” other companies have better managed to brand themselves members of the #Resistance.

Lyft has arguably done this most successfully. After years of competing with Uber, and lagging significantly behind in both valuation ($5.5 billion to Uber’s $60 billion), and market share (20% to Uber’s 80%), Lyft has profited off of recent political events, and Uber’s missteps. Lyft’s first move came in response to the #deleteUber campaign which was sparked by Uber’s actions during the airport protests against President Trump’s first executive order on immigration. About 200,000 people deleted Uber following the protests. Sensing an opportunity to distinguish themselves, Lyft made a $1 million donation to the ACLU, the very organization who had come to symbolize opposition to Trump’s executive order. In the wake of #deleteUber, Lyft downloads increased by 40% and they gained around 5% of Uber’s market share.

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