Pandemic has lent momentum to push for more worker leverage, lawyers say

Workers were walking off the job. They were striking, calling in sick en masse, airing grievances on social media, demanding their employers provide hazard pay, personal protective equipment, and paid leave. In the early days of the pandemic, it seemed that fear of contracting the coronavirus had emboldened workers across the nation to make demands, and those demands boiled down to one thing: more leverage in the workplace.

The assumption behind these demands -- that workers do not have enough say in how their work conditions look -- is not new. It's an argument that has long been made by workers' advocates, who say the barrier to unionizing has become increasingly hard for workers to scale in recent decades, and the reason these same advocates have been coming up with innovative strategies to raise labor standards and organize workers outside the context of unions. Many of these strategies have been years in the making, forged in response to more recent obstacles to unionizing introduced by President Donald Trump's administration, these advocates say. They also aim to address the rapid expansion of what labor and employment experts call the "fissured workplace" -- business models, like those of so many gig companies, that are built on outsourced, subcontracted, or franchised work.

But employers and workers' advocates both say the crisis of the pandemic has lent new momentum to the push to increase worker leverage, expanding enthusiasm for these strategies among workers and even some local governments.

Attorneys who represent businesses and other employers say it's critical to watch how these strategies develop -- particularly because they're more likely to succeed, or at least face fewer barriers, under a Joseph Biden administration.

Behind these efforts to rethink how to organize and give more leverage to workers is the idea that contemporary workplaces don't look the way they used to. In many industries, workers for a single employer are so widely dispersed they may never meet. In many of the same industries, their right to collectively bargain is contested. A widely-cited body of work by David Weil, a professor at Brandeis University and the former administrator of the U.S. Department of Labor's Wage and Hour Division under President Barack Obama's administration, aimed to make sense of this landscape in 2014 by introducing the concept of the "fissured workplace," which Weil said has spread to a growing number of industries in recent decades.

Under the fissured business model, according to Weil, businesses arguably have control over what workers do, but are also structured in ways that put them at several degrees of remove from workers so they do not have to give those workers the benefits that he feels are required of an employer-employee relationship.

"The idea is that it's hard to organize workers in a modern economy," Chris Foster, who represents employers as a partner at McDermott Will & Emery LLP, said of Weil's work. Workers' advocates "see sectoral bargaining and workers councils and wage boards as the more modern solution to that problem, because of the difficulties that they've had historically organizing employees that don't fit in the neat and tidy boxes of employee/contractor that have existed for the past number of decades," Foster added.

Heavily fissured industries include those that run on contractors, temporary workers, and franchisees, Ken Jacobs, chair of the UC Berkeley Labor Center, said in an interview. Jacobs said companies like Uber and Lyft fit squarely in Weil's framework. These workers' ability to engage in collective bargaining is either prohibited by federal law (if they're independent contractors), or less effective because of their structural distance from the company that has the power to change their working conditions. Meanwhile, many of these workers can't raise their rates or demand higher standards without risk of being underbid, Jacobs said. In cases where workers don't work directly with a company, but are contracted by a third party, the third party faces the same risk of being underbid if they decide to raise labor standards for their workers, he argued.

With these challenges in mind, some workers' advocates have focused on efforts to raise standards in entire sectors, instead of at single companies. "Unless you organize the entire industry, it is very difficult to achieve any kind of pay increases because [of] the competitive pressure," Jacobs said. To achieve sector-wide changes, unions have historically negotiated with multiple employers within a single sector. For sectors largely populated by workers who don't have access to union representation, though, one route workers' advocates have considered is creating labor standards boards. Seattle offered a model for this latter option in 2018 by becoming the first city in the nation to create a labor standards board tasked with considering labor protections and standards for domestic workers. The board was established under a new bill of rights for these workers, who are covered by the Fair Labor Standards Act but generally do not have the right to unionize under the National Labor Relations Act.

These boards are a "much weaker form of sectoral bargaining," Jacobs said. "But there's a version of that where you have worker representatives on the board, employer representatives on the board, and a government neutral. ... There is a real bargaining process and again, the workers come into that equation with some real power."

While there is not an example of a labor standards board currently in California, it is a model workers' advocates have looked at for some industries, Jacobs said. "California is uniquely situated to be a laboratory to incubate some of these new kinds of policies," he added, since the state "allows cities to create their own labor standards. That's not true in many other states. And California has a supermajority of Democrats in the state Legislature and a labor-friendly governor, and there's... a good, large number of worker organizations who are interested in looking at these ideas."

Like Foster, a recent example of such policies Jacobs noted was the public health councils program approved in November by the Los Angeles County Board of Supervisors, which was explicitly developed in response to the COVID-19 pandemic. The councils, which can be established at restaurants, food and apparel manufacturers, and warehousing and storage facilities, are worker-led groups that will collaborate with the county Department of Public Health to ensure their employers are complying with COVID-19 safety protocols.

Ron Holland, who represents employers as a partner at McDermott, said while he believes a "reinvention of the workplace is happening as a result of the pandemic," strategies like labor standards boards and worker councils have also been a long time coming. In his view, "They are really directed ... towards the gig economy -- towards the DoorDashes and the Instacarts."

With the passage of Proposition 22, which has been widely (but not universally) characterized as establishing a "third category" between an independent contractor and an employee for app-based drivers, Holland said a critical question is whether these strategies may be used to "represent this third classification of worker." Under Proposition 22, app-based drivers do not have the right to collectively bargain. "We're seeing more state municipal governments coming up with these councils to deal with some of these issues," Holland said.

The answer to this question depends largely on what happens once President-elect Joe Biden takes office. "Under the Biden administration, are federal laws going to be passed that are going to be in conflict with Proposition 22?" Holland asked. "Is there going to be a federal preemption issue? These third type of workers, are they going to be covered by the NLRA?"

In the meantime, trends in how workers are organizing have emerged -- or at least become more salient -- with the pandemic. "I'm seeing a resurgence of the corporate campaign, honestly," Holland said. "Letters are written, with employees' names signed at the bottom, by either a workers' rights group -- not necessarily a union. And the issues are workplace safety, hazard pay ... bonuses for workers, especially essential workers."

"It's easier to wage a corporate campaign," Foster agreed, adding he also predicts the "use of Zoom and online tools to network and organize."

Roxana Tynan, executive director at workers' advocacy group Los Angeles Alliance for a New Economy, said she's already seen an increase in digital organizing strategies. "The pandemic has pushed us to get better at ... digital outreach and organizing strategies," she said. "Using social media and digital outreach to let people know about their rights."

In collaboration with nonprofit United for Respect, which advocates on behalf of retail workers, Tynan's organization is working on developing an app that workers will be able to use to ask questions about their employment rights. The notion of organizing gig workers through an app is not new. Rideshare Drivers United, one of the groups leading the charge against the Uber, Lyft and DoorDash-backed Proposition 22, used a bespoke app to organize drivers.

But Tynan said workers in more traditional industries could also benefit from app-based organizing. "The challenge with restaurant workers or retail workers, even warehouse workers, is folks are still really disaggregated," she said. "There are 150,000 retail workers in the city of LA. There's no way to sort of pick a physical location to focus on."

Despite all the innovative policies on the horizon, however, Tynan said her organization's end goal is to unionize workers still, and there is no real substitute. "In moments of crisis, you have a real opportunity to capture people's imagination," she said. "In the first three, four months of the pandemic, there were wildcat worker actions ... people walking off the job with zero protections. We were able to capture some of that enthusiasm and willingness to fight."