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.
Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington has enjoined enforcement of Seattle’s first-in-the-nation ordinance giving gig economy independent contractors the right to unionize (the “Ordinance”.) Judge Lasnik’s full decision granting the U.S. Chamber of Commerce’s motion for preliminary injunctive relief in Chamber of Commerce of the United States of America v. City of Seattle can be found here. Uber, Lyft and a third ride hailing company had been due to submit driver information this week to a union recognized as a “qualified driver representative” pursuant to the Ordinance, but the requirements “are hereby enjoined until this matter is finally resolved.”
Notably, Judge Lasnik found that the Chamber may succeed on the merits of its antitrust claim, pending analysis of the City’s claim for antitrust immunity, but that the Chamber and drivers challenging the Ordinance in a consolidated lawsuit are unlikely to succeed on their National Labor Relations Act preemption claims at the moment. Judge Lasnik stressed “that this Order should not be read as a harbinger of what the ultimate decision in this case will be when all dispositive motions are fully briefed and considered. The plaintiffs have raised serious questions that deserve careful, rigorous judicial attention, not a fast-tracked rush to judgment based on a date that has no extrinsic importance.”
Despite surviving multiple court challenges, the revolutionary Seattle municipal ordinance giving gig economy independent contractors the right to unionize appears to be on hold.
According to Bloomberg BNA, a Seattle city attorney announced the city will delay enforcement of the law in proceedings before the district court hearing the challenge to the ordinance last week. Uber, Lyft and a third ride hailing company had been due to submit driver information today to a union recognized as a “qualified driver representative” pursuant to the ordinance. Seattle will not requite the companies to disclose the driver information until Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington rules on a motion filed by the U.S. Chamber of Commerce, which brought the lawsuit challenging the ordinance.
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.
While Uber attempts to discourage the unionization of drivers in Seattle, some drivers are challenging the municipal law giving drivers the right to organize. According to the Seattle Times, “the drivers are seeking a temporary restraining order barring the city from enforcing the law — the first of its kind in the country — saying it goes against federal labor and privacy laws, as well as violates their rights to free speech and association.” The lawsuit is being led by the National Right to Work Foundation and the Freedom Foundation. The drivers primarily argue that the National Labor Relations Act pre-empts the municipal law.
Another innovative municipal law has gone into effect, in San Jose, CA. The Mercury-News notes that ” San Jose businesses with 36 or more employees must now offer extra shifts to part-time workers before hiring new staff.” Under the Opportunity to Work measure, “companies must offer — in writing — extra work hours to existing qualified part-time employees. If those employees aren’t qualified or decline the extra hours, an employer can then hire additional workers to fill the shifts. The idea, advocates say, is to give existing workers access to extra hours to boost their paychecks.”
Muslim workers in Europe suffered a legal setback in seeking to assert their right to wear the hijab in the workplace. The Washington Post reports that “The European Court of Justice issued a non-binding ruling Tuesday that employers can prohibit the Muslim headscarf in the workplace, setting an important precedent for a continent in the midst of a fraught political climate.” The ECJ concluded that rules against the wearing of the hijab in the workplace were in fact rules against the visible wearing of religious signs, and thus not direct discrimination. Notably, “in the absence of official internal regulations prohibiting what employees can wear to work, the court suggested, Muslim women have a stronger case for wearing the hijab to the office.”
The confirmation hearing for President Trump’s Labor nominee, Alexander Acosta, has been rescheduled due to scheduling conflicts. The hearing is now set for March 22. In the meantime, Acosta has been meeting one-on-one with senators to drum up support for his nomination. Several Democrats have still not made up their mind on Acosta, Bloomberg BNA reports, and will continue to scrutinize his reputation.
That reputation is mixed, according to The New York Times. Some — including immigration advocates and his colleagues at Florida International University — believe that Acosta is “a fair leader” who won’t let his conservative values affect his decisions. But former colleagues claim that during his time at the Justice Department, Acosta sometimes acted out of political expedience, hiring candidates based on political connections instead of merit.
Can an employee be punished for refusing to participate in genetic testing? Maybe, if a new bill — H.R. 1313, the Preserving Employee Wellness Programs Act — becomes law. The bill, which secured House committee approval last week, would allow employers to collect genetic information on employees who participate in workplace wellness programs (read our previous coverage of corporate wellness programs here). The Washington Post has more.
The fate of several of President Obama’s signature labor and employment policies could soon hang in the balance. The Hill reports that “President Trump is facing pressure to roll back union-friendly policy changes made by the Obama-era National Labor Relations Board” from the U.S. Chamber of Commerce. In particular, the Chamber urged Trump to target “policies that hold companies accountable for labor violations committed by their partners, speed up union elections, and allow small groups of workers to organize multiple unions inside a single company.” Meanwhile, a Washington Post columnist notes that the Republican Congress is targeting President Obama’s “Fair Pay and Safe Workforces” executive order aimed at ensuring the compliance of federal government contractors with labor laws.
As President Trump acts, Americans work confidently while those without or about to lose work struggle. USA Today highlights data from payroll company ADP which shows that American workers are increasingly “shifting into new sectors, such as a marketing manager who leaves retail for finance.” Notably, “in eight of the 10 major industries tracked by ADP, the share of job-switchers who came from a different industry increased from late 2014 to late 2016 while the share swapping jobs within the same industry fell. That’s up from seven of 10 sectors that met that criteria in the third quarter.” ADP attributes such shifts to a tight labor market and worker confidence. Many workers are, of course, struggling. USA Today also features the story of John Feltner, an Indiana machinist whose union job is being outsourced to Mexico. Feltner “is left to wonder how Middle America will endure in the age of offshoring moves such as the one [his employer] is executing.”
The reports of sexual harassment of female engineers at Uber continue to make headlines. According to The New York Times, “the company dismissed the head of its engineering efforts for failing to disclose a sexual harassment claim from his previous job.” If Americans are surprised by the allegations, many female engineers are not. The CBC interviewed women in the tech world who note the commonality of harassment and misogyny in the industry.