NLRB ruling seeks to kill joint-employer doctrine
Following a similar Department of Labor rule issued Jan. 12 (WW, Jan. 23), the National Labor Relations Board weighed in on Feb. 25 with a new legal regulation that makes it harder to prove that corporations are responsible when franchise owners or contractors violate labor laws. The regulation, which becomes effective April 27, will make it harder for workers at franchises to sue when they are fired in retaliation for attempting to unionize, according to the Feb. 26 New York Times. In addition to workers in the fast food industry, this covers workers hired by contractors at staffing agencies and cleaning services.
The definition of the joint-employer doctrine, included in the federal Fair Labor Standards Act, was broadened in 2015 by the Obama administration even if the corporation only controlled workers indirectly. An example is if the company demanded that franchises use software with specific scheduling practices. But the Trump-stacked board tried to load the dice when it added the word “substantial” to the words “direct and immediate” to describe the company’s control.
Speaking for the union-supported National Employment Law Project, Executive Director Rebecca Dixon pointed out the obvious: “[I]f a company retains control over the essential terms and conditions of the work, it should share responsibility for the workers.” She also called out the regulation’s inherent racial bias against Black and Latinx workers in the subcontracted temporary industry. “While Black workers constitute 12.1 percent of the overall workforce, they make up 25.9 percent of temporary help agency workers; Latinx workers are 16.6 percent of all workers, but 25.4 percent of temporary help agency workers.” (Feb. 26)
The Times article noted that pro-labor groups might challenge the new rule since it diametrically opposes a recent federal appeals court decision upholding the 2015 joint-employer doctrine. (For more on why the NLRB is bad for workers, read “State of the Union” in the Feb. 23 Times magazine.)
Kickstarter workers first to unionize in tech industry
Kickstarter workers — engineers, directors, analysts, designers, coordinators and customer support specialists — are the first at a major tech company to unionize. Calling themselves Kickstarter United, the workers had been organizing since last March to join the Office and Professional Employees Union (OPEIU). The vote on Feb. 18 was 46 to 37. Calling the tech sector “a new frontier for union organizing,” OPEIU President Richard Lanigan welcomed the workers into “the labor movement’s efforts to improve the livelihoods of tech employees everywhere.” (theverge,com, Feb. 18)
Although the Kickstarter CEO was initially wary of the union and insisted on an official NLRB vote, he told The Verge he doesn’t see the vote “changing [the company’s] mission or vision.” TechCrunch.com reported Feb. 18 that both staff and contractors at a growing list of tech companies have expressed interest in unionizing — Spin, Instacart and Pittsburgh-based Google tech workers, along with media outlets BuzzFeed and Vox.
35-year high in major strikes 2018-19
No matter how much braggart in chief President Donald Trump boasts that his economy is benefiting his working-class base, the facts prove otherwise. According to the Economic Policy Institute report issued Feb. 11, the “number of striking workers surged in 2018 and 2019,” after decades in decline. Based on data from the Bureau of Labor Statistics, the EPI noted that it marked “a 35-year high for the number of workers involved in a major work stoppage over a two-year period.” That began with 485,200 workers in 2018 — “a nearly twentyfold increase from 25,300 workers in 2017” — and continued in 2019 with 425,500 workers.
The jump in numbers, EPI explained, “is largely fueled by an increase in stoppages involving at least 20,000 workers.” These include public school teachers from West Virginia to Chicago to Los Angeles and many states and cities in-between, as well as unionized workers at General Motors, Stop & Shop, the University of California and AT&T.
EPI Policy Director Heidi Shierholz, who co-authored the report, said in a statement, “The increase in strike numbers shows that workers understand that joining together in collective action remains an effective way to raise wages and benefits, and improve working conditions.”
Co-author Policy Associate Margaret Poydock pointed out that the uptick “has occurred despite current policy that makes it difficult for many workers to effectively engage in their fundamental right to strike.” She pointed to the Protecting the Right to Organize (PRO) Act, which the House passed Feb. 6, but which will not be approved by the current Senate.
Will the surge continue? Stay turned.