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Collective bargaining –– without the collective

Why so many Uber and Lyft drivers are pro-union but anti-Collective Bargaining Ordinance

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The Collective Bargaining Ordinance, a piece of legislation allowing Uber and Lyft drivers to unionize, has been delayed once more. On Friday, a decision by the Ninth Circuit Court of Appeals blocked the law so courts have time to re-examine the arguments put forth by the U.S. Chamber of Commerce, Uber, and Lyft. Originally meant to go into effect in January, this law has been suspended, upheld, and suspended once more. Many drivers working for rideshare apps are exhaling with relief, having been vehemently opposed to the ordinance in the first place. 

It makes sense why companies like Uber and Lyft would want to challenge legislation that allows drivers using their platform to unionize — it allows employees to band together and demand better from their employer. Better pay, better insurance, better working conditions, all things that are expensive for many for-profit corporations.

The U.S. Chamber of Commerce is challenging this law because, according to them, the Collective Bargaining Ordinance violates antitrust laws. This case hinges on the legal definition of “employee” versus “independent contractor,” because currently, many rideshare drivers — such as those using the Uber or Lyft platforms — aren’t employees of Uber or Lyft, they’re independent contractors that are using the services provided by Uber and Lyft to advance their business.

I talked to a professor of law here at the UW, Lea Vaughn, who was previously an attorney at union-side labor firm Miller, Cohen, Martens & Sugarman, P.C. The first question I asked her was: How is this still in court?

“There are at least two areas of disagreement,” Vaughn said. “One is, and it’s always the threshold issue, is a worker an independent contractor or an employee? I know that Uber and Lyft are arguing they are independent contractors, and therefore they can’t unionize. Other people, though, even in the face of the Seattle ordinance, would argue they are employees.”

Courts determine whether a person counts as an employee or an independent contractor mainly through two tests: the control test and the economic realities test. The control test asks how much control the employer has over an employee’s hours, wages, and working conditions. The economic realities test is used to gauge how economically reliant workers are on the employer. 

“The second reason, though,” Vaughn continued, “has to do with whether the city of Seattle can do a statute that, in a sense, carves out a right to unionize for a group of workers as independent contractors, who previously, under federal law, had been exempt from unionizing.”

That’s why this piece of legislation is so important and groundbreaking. If it were to be upheld in court, it would set a legal precedence for letting independent contractors unionize, which would be monumental considering the way the workplace is changing.

That sounds like a good thing, right? However, there has been a lot of protest. The reason isn’t that drivers are anti-union, but because of how the ordinance was passed and who can vote. When I asked drivers why they were for or against the ordinance, the answer most commonly started with, “I’m pro-union, but...”

“I can stand for unity, but I cannot stand for voter suppression,” Conner Crowder, an ultrasound student studying at Tacoma Community College, said. He was referring to a condition included in the ordinance regarding who had the right to vote for unionization: If you had registered with Uber after Oct. 16, 2016, you weren’t eligible to vote even if you met the other criteria.

Crowder works for Uber part-time during the school year because of the flexibility it provides. He can work 10 hours one week, take the next week off because of midterms or finals, then work 40 hours the week after that. This kind of flexibility is difficult to find in more traditional jobs, such as retail. However, he registered with Uber in January 2017, which means he isn’t eligible to vote.

“I think Seattle is a great city that knows better than what they’re doing,” he said.

The issue raised here is important because Uber and Lyft have a very high turnover rate. The vast majority of Uber and Lyft drivers are part-time, and out of the 10,000 active drivers, only 6,000 or so are eligible to vote due to the cut-off date.

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There is outrage in regards to voters’ rights, but there is also anger in relation to how the ordinance was brought into effect and who is trying to represent Uber and Lyft drivers — the Teamsters.

The Teamsters, who are headed by Dawn Gearhart and who previously fought against Uber operating in Seattle, mainly represent the yellow cab interests, not those in the rideshare business, according to Lynn Reed, a banker-turned-Uber-driver when she could no longer work at a bank due to a medical condition. 

“She [Gearhart] has made absolutely no effort to contact drivers and say, ‘What can we do to represent you, what can we do to help make you happy?’” Reed said.

Michael Wolfe, a stay-at-home dad using Uber to supplement his family’s income, also had issue with the way the ordinance had been passed.

“This isn’t transparent government,” Wolfe said. “Drivers didn’t really have any meaningful input on this, unless you were with the Teamsters. Had they had a more deliberative and inclusive process, I don’t think the council would’ve adopted that ordinance.” 

He’s in favor of working toward portable benefits for drivers, not creating a union. “I think unions are great if you’re in a direct employee-employer relationship, I just think this particular ordinance is bad,” he said.

This ordinance raises concerns over how union structure — which is almost 80 years old now — may need to be amended to meet the requirements of the modern workplace, where there is more than one type of employee. We see an amalgam of different interests even within one industry, thanks to the increase in flexibility offered by employers. 

Professor Vaughn agreed. 

“One issue is how they unionize — not even whether — because different workers use the app differently,” Vaughn said. 

A union implies a uniform spread of interests, which isn’t true in this case.

Historically, unions were created specifically for people working in factories, and that shows. The way unions are structured is antiquated, assuming that everyone is doing the same exact job in the same exact way within the same exact environment, which just isn’t true anymore. Uber and Lyft and other rideshare apps are just the first example of a traditional industry being uprooted and transmuted into something else, and with the exponential advances in technology, it isn’t too farfetched to say we will see similar things happening in other traditional industries. The workplace is changing, and we need to do a better job of keeping up. 

 

Reach writer Ayesha Saleem at opinion@dailyuw.com. Twitter: @ayeshasaleem42

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