Correction: Harold Meyerson’s Sept. 3 op-ed column stated incorrectly that drivers who are designated as independent contractors for FedEx “can’t drive for anybody else.” The sentence was a reference to a 2014 court ruling finding that FedEx had misclassified about 2,300 California drivers as independent contractors instead of employees. The court found that FedEx exercised substantial control over the drivers but not that drivers were forbidden to work for other vendors.
On this Labor Day, American workers may be beginning to reclaim what by right should be theirs. To be sure, the economic statistics continue to appall: In the second quarter of this year, for instance, labor costs rose at their lowest rate since the early ’80s — a measly 0.2 percent, despite steady economic growth and falling unemployment. That’s what happens when the income gains from work accrue almost entirely to owners, stock players and top executives.
But the pushback against the imbalances of power and income between workers (who have little) and employers (who have lots), which has been spurred by fast-food workers’ “Fight for 15,” is showing some distinctly positive results. Ordinances to raise the local minimum wage, for instance, which first popped up in liberal strongholds such as San Francisco and Seattle, have in the past few weeks been enacted in St. Louis; Kansas City, Mo.; and Birmingham, Ala. A proposed ballot measure to raise the minimum wage to $15 by 2021 in California — home to one of every eight U.S. workers — commanded 68 percent support in a Field Poll survey last week.
Unions are polling better, too: In a mid-August Gallup Poll, they had a 58 percent approval rating, including 66 percent among adults under 35. That’s radically at odds, of course, with the percentage of private-sector workers who actually belong to unions, which is just 6.6 percent. The chasm between the number who approve and the number who belong stems from decades of union smashing by employers, ranging from illegal firings of union activists to corporate restructurings that enable employers to claim their workers aren’t actually theirs.
From hotels whose desk clerks and housekeepers are nominally employed by staffing agencies; to the Nissan factories where “temps,” who may have labored there for years, are paid less than Nissan employees for doing the same work; to the FedEx drivers, whom the company insists are independent contractors, though they can’t drive for anybody else, millions of workers have had no legal right to knock on their parent employers’ doors if they’ve been paid subminimum wages, been injured on the job or wished to form a union. Now, that’s beginning to change.
Last week, the President Obama-appointed majority on the National Labor Relations Board ruled that a local union representing staffing agency employees at Browning Ferris, a California waste-management company, could bargain with Browning Ferris itself: The parent company, the board members said, was really a joint employer. The new joint-employer standard will help fast-food workers seeking to unionize chains such as McDonald’s, but it likely will spur even more immediate unionization efforts in such permatemp-reliant workplaces as warehouses, hotels and factories. Browning Ferris may not be the last of the NLRB’s attempts to scuttle the false distinction between employees and permatemps. In Miller & Anderson, a case pending before the board, that same majority could rule that a union can actually represent both outsourced workers and parent-company employees in the same unit.
The “if it quacks like a duck, it’s a duck” standard proclaimed by the NLRB also infuses recent rulings against companies that mislabel their workers as independent contractors. California’s labor commissioner, Julie Su, has ruled repeatedly that the state’s port truckers, who transport imports from harbors to warehouses, are actually employees who’ve been illegally underpaid. Her rulings have prompted a number of companies to acknowledge that the drivers are in fact theirs and to make back-pay settlements; in some cases, those drivers have formed unions and won contracts. Also in California, this Tuesday, a federal judge ruled that Uber drivers could file a class-action suit petitioning for reclassification as employees.
A different solution to the independent contractor charade may be forthcoming in Seattle, where, as The Post’s Lydia DePillis has reported, the city council has before it a proposed ordinance that would permit personal transport drivers — that is, those independent contractors who drive not just for Uber and Lyft but for taxicab companies, too — to unionize without changing their status. The National Labor Relations Act specifically excludes independent contractors from its coverage, in the same section that excludes public employees and agricultural and domestic workers. The reasoning behind the Seattle proposal is that nothing in federal law prohibited states and localities from enacting their own laws granting collective bargaining rights to public employees and agricultural workers (as many have done), so they can extend those rights to independent contractors as well.
No effort to reduce our towering levels of inequality can succeed unless workers can amass more power. On this Labor Day, they appear to be finding ways to do just that.
To read more on this topic: