A huge controversy has erupted among labor unions after several unions joined with Uber and Lyft to develop legislation in New York state that would deliver on one of labor’s major goals: giving many gig workers a quick path to unionization.
The legislation would make good on another labor objective: allowing industrywide bargaining for gig workers, specifically the roughly 250,000 app-based drivers and food delivery workers in New York.
But many union officials and worker advocates have denounced the legislation, saying it comes at too steep a price.
The legislation falls short of labor’s goal of defining these gig workers as employees, a move that would give them protections under minimum wage and anti-discrimination laws. They also complain that the legislation contains language that would prohibit app-based drivers and delivery workers from going on strike. Critics further assert that the legislation would undermine labor’s No 1 goal nationwide: getting Congress to enact the Protecting the Right to Organize Act (Pro Act), a bill that would make it considerably easier to unionize workers.
The chief author of the New York legislation, state senator Diane Savino, a former union official herself, said she was eager to find a way to unionize gig workers and improve their lives.
“We want to focus on the people who are most at risk in the gig economy – the ride-sharing people and the delivery workers,” Savino told the Guardian. Savino, who represents parts of Brooklyn and Staten Island, said she backed the Pro Act and in no way wanted to undermine it.
The main union behind the legislation, the International Association of Machinists, argues that the bill would be a bridge to the Pro Act. “This helps with the Pro Act,” said Brendan Sexton, executive director of the Independent Drivers Guild, an arm of the Machinists that reached a deal with Uber in 2016 to represent Uber drivers in New York City. (Uber provides money to help finance the group.)
“When the Pro Act passes, we’ll already have 250,000 workers in a union who know what it means to get the benefits of a union and the collective voice of a union,” Sexton said. “When you ask critics, what is the best way to lift the voices of gig workers, how will you give them worker power, they’re silent.”
State senator Jessica Ramos, who represents a district in Queens with many immigrants and many app-based drivers and delivery workers, opposes the legislation.
“It really breaks my heart to see how my neighbors were completely left out of a deal where the companies decided that they would somehow be deemed second-class workers under the law.” Ramos, who chairs the senate labor committee, said she would seek to block the legislation, which supporters hope will be enacted before the legislature adjourns on 10 June.
Ramos said: “There is no way on earth that New York will go to the right of Joe Biden on a worker issue. We can’t undermine the Pro Act. We cannot be complicit in helping Uber and Uber Eats in creating a carve-out of the Pro Act.”
The Pro Act would make it far easier to classify Uber and Lyft drivers and delivery workers as employees. The New York legislation seeks to walk a tightrope, with tech companies arguing that gig workers are independent contractors and not employees, the legislation does not define them in either group, instead calling them “network workers”. Under federal law, employees have a right to unionize, but independent contractors do not. The gig workers’ bill would give New York’s imprimatur toward their unionizing and help them surmount any complaints that they are violating antitrust laws by conspiring to set pay and benefit levels. Under the legislation, once the drivers’ union or delivery workers’ union reaches an agreement with the industry, a five-person state board would decide whether to adopt those recommendations.
Under the legislation, once 10% of the state’s app-based drivers or delivery workers sign cards supporting a union, that union would be designated the exclusive bargaining agent for all the drivers or delivery workers in the state. To finance the unions, the legislation calls for a 10-cent fee per ride or delivery, generating tens of millions of dollars annually for a union.
Bhairavi Desai, co-founder of the New York Taxi Workers Alliance, a union that represents 15,000 taxi drivers, said: “There’s so much wrong with this legislation. What it fundamentally does is relegate drivers to be second class on every level of labor law, from wages to safety to bargaining rights. In fact, on wages and unemployment, it rolls back rights that we’ve painfully won.”
Savino says the legislation would provide better workers’ compensation and unemployment insurance coverage for gig workers, but critics note that the legislation would let gig companies pay less than half of what other companies pay toward unemployment insurance.
Desai and other critics point to several provisions they found particularly objectionable.
The legislative language suggests that the Machinists’ Independent Drivers Guild would be the only group that qualifies to represent drivers. The legislation says any union that represents the drivers must have “demonstrated experience in representing network workers or other related workers in reaching agreements with companies for at least five years”.
Another complaint: tech companies that bargain with the drivers and delivery workers would be exempt from city or county minimum wage laws (including New York City’s $17.47 minimum hourly pay for app-based drivers). Tech companies would also be exempt from regular state labor laws on discrimination and other employment matters.
Under the legislation, if the drivers or delivery workers decide against having arbitration during contract disputes and vote down the companies’ last and best offer, then the union would be decertified – that provision places immense pressure on the workers to accept the companies’ offer. The legislation calls for companies to sign labor peace agreements in which companies would promise not to fight against unionization and the union vows not to engage in strikes or boycotts.
Veena Dubal, a law professor at University of California, Hastings, compared the legislation to “Prop 22 but with union membership and prohibiting collective action” (Prop 22 was a successful, company-backed ballot initiative in California that defines Uber and Lyft driers as contractors not employees.) “I do not want to believe any union leaders would support this,” Dubal said.
Sixteen labor and progressive groups – including the United Auto Workers, Make the Road New York, National Employment Law Project and New York Civil Liberties Union – issued a statement on Tuesday condemning the legislation. “This bill would set a dangerous precedent for the country,” they said. “Make no mistake, if these companies win in New York state, they will try to replicate these carve-outs from labor law nationally, putting millions of workers at risk and undermining momentum for the Pro Act.”
Defenders of the New York legislation say the no-strike language applies only before the union is certified, but not during collective bargaining. But many read that language differently.
John Samuelsen, president of the Transport Workers Union, has outspokenly backed the legislation. But after hearing criticisms that the bill would bar strikes during collective bargaining, he told the Guardian: “I cannot support a law with language that prohibits collective action. It’s the only way to influence what’s happening at the bargaining table.”
Uber, Lyft and DoorDash did not respond to emails asking for their views on the New York legislation.