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Punching In: Uber Union Fight Looms, Labor Leadership Openings

Dec. 2, 2019, 11:15 AM

Monday morning musings for workplace watchers

Gig Workers: Solo or Solidarity? |Allende Votes With His Feet| Who Wants to Be a Labor Department Nominee?

Chris Opfer: Remember when Seattle tried to give Uber and Lyft drivers the right to unionize? That move got a lot of attention, but it was quickly held up in the courts on antitrust grounds. Gig workers of all stripes have widely been thought to be barred from joining together in traditional labor organizations, because of their status as independent contractors.

But a brewing battle over worker classification in New York is set to soon test that conventional wisdom.

A pair of influential state lawmakers plan to introduce a new gig-worker-rights bill in Albany shortly after the legislative season kicks off in January. The legislation is being styled “A.B. 5-plus” by some worker advocates. It’s expected to make it harder to classify gig and other workers as contractors instead of employees, similar to the new A.B. 5 law in California, plus it would give those workers the right to unionize.

The legislation faces two formidable hurdles: federal antitrust and labor relations laws. The former largely treats collective bargaining among independent contractors as a form of illegal price fixing, while the latter widely preempts states from regulating labor rights in the private sector. But supporters of the upcoming legislative proposal in New York say they see a way around those immovable objects, thanks to the Seattle decision and a recent memo from the National Labor Relations Board’s top lawyer.

Check out my story with Bloomberg Law’s Keshia Clukey on the coming battle over New York gig worker unionization and let me know how you expect it to shake out.

Ben Penn: A seemingly minor personnel change took place at the Labor Department recently with barely a peep, but it could have implications for Trump administration labor policy in 2020.

Pedro Allende, the department’s White House liaison and a one-time top counselor to former Labor Secretary Alex Acosta, quietly departed for a job at the Energy Department. Allende’s last day at the Perkins Building was Nov. 15, a DOL spokeswoman confirmed.

Allende’s departure isn’t a shocker. He originally was brought on in 2017 by fellow Florida attorney Acosta, who resigned in July. It would make perfect sense for new DOL boss Gene Scalia to select his own representative to 1600 Penn.

The department’s now interviewing candidates for Allende’s old job, which remains vacant, I’m told. The White House liaison is typically in charge of overseeing the appointment process for various DOL positions.

As 2020 nears, the timing to fill the liaison opening and other vacancies raises a conundrum: There’s widespread interest in conservative circles to sign up for a gig alongside a labor chief with the gravitas of Scalia. But by the time the vetting process is complete, candidates would be looking at less than a year at DOL before the possibility of being bounced back to the job market if Donald Trump loses his reelection bid.

The potential short-term nature of the job should narrow the pool of applicants Scalia would otherwise attract as he fills out the political ranks of his department.

Jaclyn Diaz: Even before the White House liaison post opened at DOL, labor-related nominees were falling by the wayside as the White House and Senate leadership gave top priority to confirming judicial nominations.

Persistent vacancies at many federal agencies has been a problem throughout the Trump administration. At one point, the DOL was without confirmed leaders for seven of its sub-agencies. Things have improved, but the department’s still not at capacity.

The Occupational Safety and Health Administration, for one, is a crucial sub-agency but has been without a leader throughout Trump’s nearly three years in office.

Veterans’ Employment & Training Services, a lower-profile sub-agency that’s similarly been without an assistant secretary since the Obama administration ended, finally has a new leader. The Senate in early November confirmed John Lowry to run VETS. Lowry had waited since 2018 to be confirmed. Does he get some sort of commemorative mug for his patience?

We may soon see more picks for DOL leadership vacancies, as Scalia assesses open positions and his options for filling them. In coming days I’ll be diving into the impact of vacancies at DOL, the National Labor Relations Board, and the Equal Employment Opportunity Commission.

Speaking of nominations, the Senate Health, Education, Labor, and Pensions Committee this week will consider two pending nominations for the Occupational Safety and Health Review Commission, an agency that’s been quorum-less for some time. The Senate panel’s expected to vote on the nominations of Cynthia Attwood and Amanda Wood Laihow at 10 a.m. Tuesday.

We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us.

See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editor responsible for this story: John Lauinger at jlauinger@bloomberglaw.com