OPEN LETTER FROM LABOR SCHOLARS OPPOSING DRAFT LEGISLATION ON APP-BASED WORKERS

May 31, 2021

We, the undersigned labor scholars and academics, oppose the current draft legislation to establish so-called “sectoral bargaining” for app-based workers in New York State. After a careful examination of draft versions of the bill, the latest of which is dated May 24th, 2021, we conclude that the bill would represent a step backwards for worker rights in New York and would establish a dangerous precedent for the rest of the country. The bill would undermine basic labor and employment rights workers fought for and won decades ago, as well as more recent victories won by thousands of app-based drivers. Indeed, rather than giving app-based workers a collective voice on the job, the measure would serve to increase the already overwhelming power that app-based corporations now wield.

Below are some particularly egregious aspects of the bill that compel us to reject it in its entirety:

ESTABLISHES COMPANY UNIONISM RATHER THAN DEMOCRATIC UNIONISM

The proposed bill is being promoted on the grounds that it secures collective bargaining rights for app-based drivers and delivery workers, but in reality, the result would promote company unions, particularly because a company union has been in operation in the industry for the last five years. Under the provisions of the draft bill, a union can become the exclusive bargaining representative based on a demonstration of support from only 10 percent of the workers. The remaining 90 percent of the workforce are denied the opportunity to select a union of their choice for purposes of collective bargaining. Moreover, the companies will fund the union through a 10 cent per ride surcharge, a model that undermines its independence and accountability to its members.

DOES NOT ESTABLISH MEANINGFUL COLLECTIVE BARGAINING

The bill would narrowly limit the mandatory subjects of bargaining to include only the minimum level of earnings, a procedure for workers to appeal deactivation from the app, and the size of companies’ contributions to a vaguely defined “portable benefits fund.” Critical subjects, like breaks and paid leave, to name a few, could only be negotiated with the agreement of an industry representative. In short, the ability of workers to collectively bargain for the wide range of conditions that affect them on the job would be significantly curtailed by this law.

ENTRENCHES UNJUST EXCLUSIONS FROM LABOR AND EMPLOYMENT LAWS

The bill would treat app-based workers as independent contractors and not employees. As a result, these workers would be excluded from coverage under state labor law, disability law, workers comp, paid family leave, paid sick leave, City paid sick leave, City and state human rights laws, and any other laws governing employer-employee relationships. Furthermore, earlier court decisions in New York State, including by the State’s highest court, ruled last year Postmates, Uber and Lyft drivers are employees under existing Unemployment Insurance (UI) law, and the court’s reasoning is applicable to other app-based workers. This bill would affirmatively repeal a hard-won gain against the app companies to establish employee status for app-based workers.

THE BILL DENIES WORKERS BASIC LABOR RIGHTS

The proposed measure would bar workers from picketing, striking, and walking off the job to protest working conditions not only during the initial period of organizing but also during bargaining. While labor peace agreements can, under certain circumstances, simplify processes for unionization through limiting anti-union interference from employers, such restrictions on worker activity during the bargaining process eliminates the most important source of worker power and leverage.

MINIMUM WAGE WILL BE CUT

According to New York Taxi Workers Alliance (NYTWA), the bill would void the New York City/Taxi and Limousine Commission’s 2018 driver pay rules, secured after a year-long campaign by the NYTWA, which aim to pay $17.47/hour for all time driven on the app, from login to log off, replacing it with a floor of the state minimum wage only for engaged time (time from when a ride is assigned to when the ride is completed). Because drivers spend a large portion of their time waiting for rides to be assigned, the proposed legislation would drop hourly wages for New York City drivers far below minimum wage.

NEW UNEMPLOYMENT INSURANCE RULES WILL DRASTICALLY RESTRICT ACCESS

During the pandemic, at least 68,000 Uber and Lyft drivers received full unemployment benefits (UI) as employees based on a 2018 ruling that NYTWA had won against Uber and the 2020 injunction that NYTWA secured against Governor Cuomo and the State Department of Labor. It is unclear whether these 68,000 drivers would be entitled to UI under the proposed new law. Furthermore, workers who would otherwise receive UI under current state UI law would no longer qualify as drivers deactivated for violating company policy without any due process would be ineligible.

In summary, the proposed bill would roll back hard-earned gains by app-based drivers and other workers and establish a dangerous precedent for the rest of the country. Moreover, it would undermine the national campaign to reform federal labor law through Protect the Right to Organize Act (PRO Act), which has been passed by the United States House of Representatives and pending in the Senate.

We urge the leaders of New York to support true labor law reform that classifies workers as employees and provides those workers with full labor and employment rights.

Mark Anner, Professor of Labor and Employment Relations, and Political Science, Director, Center for Global Workers’ Rights, The Pennsylvania State University

Sofya Aptekar, Associate Professor, CUNY School of Labor and Urban Studies

Kafui Attoh, Associate Professor of Urban Studies, CUNY School of Labor and Urban Studies

Eileen Boris, Hull Professor of Feminist Studies, University of California-Santa Barbara

Stephen Brier, Professor, Urban Education, The Graduate School and University Center, CUNY

Kate Bronfenbrenner, Director of Labor Education Research and Senior Lecturer, ILR School, Cornell University

Paula Chakravartty, Associate Professor, Gallatin & MCC, NYU

Jenny Chan, Assistant Professor of Sociology and Labor Studies, The Hong Kong Polytechnic University; Vice President, The International Sociological Association’s Research Committee on Labour Movements

Cedric de Leon, Director of the Labor Center and Professor of Sociology, UMass Amherst

Ellen Dichner, Distinguished Lecturer, CUNY School of Labor and Urban Studies

Laura Dresser, Associate Director, Center on Wisconsin Strategy, University of Wisconsin-Madison

Barry Eidlin, Assistant Professor of Sociology, McGill University

Peter Evans, Professor Emeritus, Department of Sociology , University of California, Berkeley

Janice Fine, Professor, Rutgers School of Management and Labor Relations

Eric M. Fink, Associate Professor, Elon Law School

Josh Freeman, Distinguished Professor of History, CUNY Graduate Center

Eli Friedman, Associate Professor and Chair of International & Comparative Labor, Cornell University

Rebecca Kolins Givan, Associate Professor, School of Management and Labor Relations, Rutgers University

Shannon Gleeson, Professor, Cornell University, ILR School

Jennifer Gordon, Professor of Law, Fordham University School of Law

Paul Christopher Gray, Associate Professor, Brock University, Department of Labour Studies

William A. Herbert, Distinguished Lecturer, Hunter College

Elaine Hui, Assistant Professor of Labor and Employment Relations and Asian Studies, Penn State University

Chaumtoli Huq, Associate Professor of Law, CUNY Law School

Ken Jacobs, Chair, UC Berkeley Center for Labor Research and Education, Institute for Research on Labor and Employment

William P. Jones, Professor of History, University of Minnesota, President, Labor and Working Class History Association

Dave Kamper, Chair, New Brookwood Labor College

Jasmine Kerrissey, Associate Professor of Sociology and Labor Studies, University of Massachusetts — Amherst

Gordon Lafer, Professor, Labor Education and Research Center, University of Oregon

Dan Letwin, Associate Professor of History, Penn State University

Penny Lewis, Associate Professor, CUNY School of Labor and Urban Studies

Nelson Lichtenstein, Distinguished Professor, University of California-Santa Barbara

Risa Lieberwitz, Professor of Labor and Employment Law, Cornell University

Shirley Lin, Assistant Professor of Law, Elisabeth Haub School of Law

Stephanie Luce, Professor, CUNY School of Labor and Urban Studies

Katherine Maich, Assistant Professor of Labor & Employment Relations, Penn State

Jane McAlevey, Senior Policy Fellow, UC Berkeley Labor Center

Jamie McCallum, Associate Professor of Sociology, Middlebury College

Michael A. McCarthy, Marquette University

Joseph A. McCartin, Professor of History; Director, Kalmanovitz Initiative for Labor and the Working Poor, Georgetown University

Ruth Milkman, Distinguished Professor, CUNY Graduate Center

Carolina Bank Muñoz, Professor of Sociology, Brooklyn College and CUNY Graduate Center

Victor Narro, Core Faculty, UCLA Labor Studies Program

Amy C. Offner, Associate Professor of History, University of Pennsylvania

Peter Olney, Organizing Director ILWU Retired

Adam Reich, Associate Professor & Director of Graduate Studies, Department of Sociology, Columbia University

Andrew Ross, Professor of Social and Cultural Analysis, New York University

Ellen Schrecker, Professor of History (retired) Yeshiva University

Gay Seidman, University of Wisconsin-Madison, past chair of the American Sociological Association’s Labor Section

Mark Selden, Senior Research Associate, Cornell University

Rachel Sherman, Professor and Chair of Sociology, The New School

Samir Sonti, Assistant Professor, CUNY School of Labor and Urban Studies

Michael Spear, Assistant Professor of History, Kingsborough Community College

Joel Suarez, Assistant Professor, CUNY School of Labor and Urban Studies

Sean Sweeney, School of Labor and Urban Studies, CUNY

Chris Tilly, Professor of Urban Planning and Sociology, UCLA

Todd E. Vachon, PhD, Director of Labor Education, Rutgers University SMLR

Nantina Vgontzas, Postdoctoral Researcher, AI Now Institute, NYU

Eve Weinbaum, Associate Professor, Labor Studies, University of Massachusetts Amherst

Katie Wells, Postdoctoral Research Fellow, Georgetown University

Meredith Whittaker, Minderoo Research Professor, New York University, Founder of Google’s Open Research group, Co-founder of the AI Now Institute

Naomi R Williams, Assistant Professor, Rutgers University

Gabriel Winant, Assistant Professor of History, University of Chicago

Lane Windham, Associate Director, Kalmanovitz Initiative for Labor and the Working Poor and WILL Empower (Women Innovating Labor Leadership), Georgetown University

Todd Wolfson, Associate Professor, Rutgers University

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