Only in California: You’ll Never Guess Who Belongs to a Labor Union Now

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I’M NOT SURE ABOUT the rest of the world, but here in the U.S. there has been an ongoing battle over just what an independent contractor is.

It’s become a bigger issue over the last few years because of businesses like ride-sharing giant Uber, a company built on the premise that its drivers are simply gig workers that contract with the company and control when and how much they work.

If you’re a bit foggy over what an independent contractor is, join the club because it isn’t terribly clear. Here’s how Investopedia defines it:

“An independent contractor is a self-employed person or entity contracted to perform work for — or provide services to — another entity as a non-employee. As a result, independent contractors must pay their own Social Security and Medicare taxes.

In addition, an entity that uses the services of an independent contractor is not required to provide them with employment benefits, such as health insurance and employer-sponsored retirement accounts that the entity may otherwise provide to its employees. The payer must correctly classify each payee as either an independent contractor or an employee.

Another term for an independent contractor is ‘freelancer.’ “

California pushes the envelope on workplace rules

In the United States, the battle over independent contractors has been waged by the U.S. Department of Labor and the National Labor Relations Board (NLRB), and the fight has increased recently because so many people moved to flexible gig work during the Covid lockdown.

However, the fight over ride-sharing services using gig workers has also been fought at the state level, especially here in California, where voters rejected a ballot measure that would have required Uber drivers to be classified as company employees.

California deep blue political class is proud of how it continues to push the envelope on groundbreaking workplace rules, no matter how wacky they may be, and the fight to kill gig work has now moved from Uber drivers to another group of independent contractors.

Strippers. recently wrote about the latest labor battle in What we learned from the nation’s only stripper union.

The article was focused on “Dancers at a North Hollywood topless bar (who) voted to be represented by Actors’ Equity Association last week, setting them up to be the only unionized strippers in the U.S., according to the union.

Labor’s move to organize a very unorganized profession

You would think that strippers would be the quintessential definition of independent contractors, but that hasn’t stopped labor unions from trying to organize what is typically a very disorganized profession.

Here’s more on the case, from Politico:

“The Star Garden case might have also revealed something about the NLRB: the agency’s thinking on factors for worker classification.

In a request for review of the election, the company argued in part that the dancers were not employees, but rather independent performers leasing space in the club. The review was denied by the board.

That could open the door to other workers in similar arrangements, like hair stylists or workout class instructors.

‘Just because somebody’s leasing a chair in a salon or other types of situations like that … Still, nonetheless, they say, ‘No, these people are employees,’ Michael J. Lotito, who represents employers at the law firm Littler, said of the NLRB.

The case is ‘one tiny indication’ that board members will look past employment designs ‘that are structured, in part, to create an independent contractor presumption,’ he said.”

One thing to keep in mind is that the NLRB is a highly partisan agency. It has five Board members who are appointed by the current president and then confirmed by the U.S. Senate for a five-year term. Generally, the Board has a 3-2 split that favors the party of the president in office – and reflects their politics as well.

The bigger question is this – Are strippers really clamoring to be union members?

Apparently yes, because Fortune magazine

Kate Shindle, president of Actors’ Equity Association, told Politico that she hopes workers in other non-traditional employment arrangements will be able to organize.

“The way that public sentiment has coalesced around the idea that strippers especially need a union … really, really fills me with optimism,” Shindle said. “When we first met with the dancers, they were very open about and very aware of the stigma of their industry.”

I’m not sure that the “stigma of their industry” is that strippers are not organized by a union, or, that they get paid for slowly taking off their clothes in public.

Whatever it is, one of the key principles of gig work is that as an independent contractor, you can generally choose when, where, and how you work.

That’s true for almost all independent contractors, whether you’re a stripper OR an Uber driver.

And one last thing: no matter how the NLRB rules on independent contractors today, what they do is likely to get overturned when a Republican president gets voted in and appoints a more conservative NLRB tomorrow.

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