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New York Gig Workers to Get Easy Unionizing Path in Draft Bill

May 21, 2021, 9:03 PM

New York delivery and ride-share workers at companies such as Uber Technologies Inc. and Instacart Inc. would have a straightforward ability to unionize and collectively bargain en masse—without being classified as employees—under the terms of a groundbreaking draft state bill poised for introduction next week.

The bill continues to undergo last-minute changes but is largely settled thanks to a deal reached between gig-economy corporations and New York unions. The state’s gig-economy workers would be labeled “network drivers” rather than employees, who receive a wider suite of worker protections, and they’d be divided into two industry units—one for ride-share drivers and one for delivery couriers—according to a draft copy of the legislation obtained by Bloomberg Law.

Anyone classified as an employee wouldn’t be covered by the bill. The text is silent on whether workers are independent contractors, who are generally carved out of worker-rights laws—which calls into question whether the measure could withstand antitrust law restrictions on collective bargaining by contractors.

If a union submits letters of support for unionizing from at least 10% of active workers in the industry (with ride-share separate from delivery), the union can get approved by the state as the exclusive bargaining representative on behalf of all workers in the state in that industry, the legislative text states.

Workarounds

The workers would not need to hold a formal vote on whether to unionize and the companies would pledge to remain neutral in the organizing drive, while providing worker contact information to the union.

These terms would provide workarounds to the key obstacles facing union organizing drives throughout the economy, but would likely spur attacks from union critics about subjecting workers to union contracts who never had a chance to voice their opinion.

Once certified by a newly formed state commission, the union and the gig companies would hammer out standards governing the entire industry, a process known as “sectoral bargaining.”

The bill’s lead author, State Sen. Diane Savino (D), in an interview Friday, said her office is finalizing details on a bill that would provide statutory protections for ride-share and delivery workers, as well as the right to bargain collectively.

Savino said she expects to introduce the final bill language early next week, and expressed optimism it would pass both legislative chambers by June 10 and then be signed into law by Gov. Andrew Cuomo (D).

Pathway to Unionization

The legislation would be the culmination of years of discussions between organized labor and digital platform corporations over how to provide a pathway to unionization for gig workers. It could lead to thousands of new union members in New York’s gig sector, offering a model for other states to consider.

But because the bill stops short of categorizing workers as employees, it will be met with strong pushback from some in the labor movement who are calling on Congress to enact sweeping federal labor law reform that would make it much tougher for gig companies to avoid tagging drivers as employees.

“We’re kind of bending labor law to address the complexities with this workforce and still preserve the flexibility that the workers themselves have said to us we want to preserve,” said Savino, whose legislative district includes parts of Brooklyn and Staten Island.

“There are people who are going to like it. There are people who are going to hate it, and you know, that’s always how it’s going to be,” Savino added. “At the end of the day, here’s what I can tell you: This bill hurts nobody, but it helps a hell of a lot of people.”

It would create a separate fund for ride-share and delivery employers to pay into, the state senator said. The fund would provide unemployment benefits for those workers not traditionally covered by state and federal unemployment benefits, such as undocumented immigrants, she said.

VIDEO: App-based companies and state governments are at odds over how to properly classify gig economy workers.

Legislative Details

Those workers who are eligible would go through the traditional unemployment process. Other details in the draft bill text include:

  • Establishment of a Network Worker Relations Board, a five-member panel within the New York Department of Labor;
  • The collective bargaining agreements must be approved by a majority of all workers who voted before the deal can be submitted to the board for approval; and
  • Union representation fees would be 10 cents per ride or per delivery.

“These discussions have not been finalized but I am optimistic that these efforts will ultimately result in legislation that makes New York a better place to live, work, and raise a family,” said Assemblywoman Latoya Joyner (D) of the Bronx, who chairs the assembly’s labor committee, in a prepared statement.

Noted Opposition

State Senator Jessica Ramos of Queens came out against the bill, citing fear it would create a “company union” and would undermine the federal labor law bill passed by the House, the Protection the Right to Organize Act.

“Nothing that is done without workers is for workers,” she said in an emailed statement. “As Chair of the Senate Committee on Labor and State Senator to the largest number of TLC licensees in New York, I cannot support legislation crafted without uncompromised worker voices at the table and I will not stand aside while billion-dollar corporations try to legislate the lives of immigrant workers, my neighbors.”

John Samuelsen, president of Transport Workers Union, who said he’s gotten involved in the bill’s discussions in recent weeks, is supportive of the model. But he’s also working behind the scenes to ensure the final product introduced by Savino in the coming days reflects revisions based on feedback he’s received from workers.

— With assistance from Josh Eidelson

To contact the reporters on this story: Ben Penn in Washington at bpenn@bloomberglaw.com; Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com

To contact the editors responsible for this story: Andrew Harris at aharris@bloomberglaw.com; John Lauinger at jlauinger@bloomberglaw.com

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