Tag Archives: california

But Where Can We Shelter?

Originally published in The Nation on June 16, 2020.
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After the fifth debate of the 2020 Democratic presidential primaries, The Washington Post published one of its infamous fact-checks highlighting those moments when, in the paper’s estimation, someone got too loose with the truth. Among the 10 claims flagged by the Post was Vermont Senator Bernie Sanders’s remark that the United States has “500,000 people sleeping out on the street.” This statement was “exaggerated,” the Post admonished, because while it’s true that in 2018 the Department of Housing and Urban Development (HUD) estimated that there were 553,000 people experiencing homelessness in America, not all of them were technically on the streets; some 360,000 were in shelters or transitional housing.

Putting aside that many experts believe HUD grossly undercounts the homeless, the Post’s finger-wagging exemplified some of the peak absurdities of America’s housing crisis. The United States is the richest country in the world, but millions of its people struggle to afford housing or find it at all. Instead of ensuring that there are enough units in areas where people want to live, we’ve dawdled for decades and made excuses for why things can’t be different—or even claimed they really aren’t so bad.

Golden Gates, a new book on the housing crisis by New York Times reporter Conor Dougherty, dives straight into these problems, skillfully exploring everything from the yes in my backyard (YIMBY) movement, which promotes more housing development, to anti-gentrification activism, the normalization of homelessness, and the factors that have made it so prohibitively expensive to build anything new. It’s the latest addition to a slate of books on housing that have come out over the past few years, including Richard Rothstein’s The Color of Law, Matthew Desmond’s Evicted, Ben Austen’s High-Risers, Matthew L. Schuerman’s Newcomers, and P.E Moskowitz’s How to Kill a City. These books have explored various aspects of housing discrimination, especially the burdens borne by the nation’s poor and people of color, but Dougherty’s is among the first to look squarely at the politics of trying to respond to this disaster. By examining the inertia and ineffectiveness of political leaders who largely agree on what needs to be done, he makes a sobering case for how and why our politics have failed. While not so much a book of specific policy prescriptions, Golden Gates helps clarify why we have a housing crisis in the first place.

As suggested by the title, Golden Gates focuses on California, especially on San Francisco, where the housing troubles are particularly extreme. California has the distinction of having one of the highest housing costs in the nation and some of the highest-paying jobs. It also has, using HUD’s metric, more than 150,000 people experiencing homelessness—far more than any other state in the country. But California’s problems, Dougherty insists, are not anomalous: They are merely “an exaggerated example of the geographic inequalities” that we see in almost every American city as urban centers grapple with the increasing concentration of economic opportunity and the rising cost of living near it. As higher-paying industries like tech and consulting consolidate in and around a few dense areas and as lower-paying retail and health care jobs replace those in manufacturing, the competition to find housing near the good-paying jobs has grown more acute.

To tell this story of housing scarcity and political inaction, Dougherty focuses on a diverse set of people, including Jesshill Love, a longtime Bay Area landlord wrestling with how to raise rents, and Rafael Avendaño, the director of a youth center who tries to teach teenagers in Redwood City how to fight their evictions. We hear from housing developers like Dennis O’Brien and Rick Holliday about the byzantine barriers they face to build more homes and from state Senator Scott Wiener, who has struggled to get his housing reform bills approved. And we hear quite a bit from leaders in the YIMBY movement, like the teacher turned housing activist Sonja Trauss, who moved to the Bay Area in 2011. Since then, the Bay Area has created roughly eight new jobs for every new housing unit, far beyond the 1.5 jobs per new unit recommended by planners. Trauss and her fellow YIMBYs want more homes built, arguing that the shortage in metro areas with highly sought-after jobs has led to soaring rents and home prices and justified fears of displacement.

One of the most sobering aspects of Dougherty’s narrative comes from his historical findings. Many people are familiar with the current affordability crisis in San Francisco, which is often blamed on greedy tech CEOs and venture capitalists. But fewer are aware of its deeper roots. Digging through the archives, Dougherty shows just how long California leaders have been aware of the housing crisis that the state faced if it didn’t alter course. “Changing San Francisco Is Foreseen as a Haven for Wealthy and Childless,” read one New York Times headline in 1981. Two years earlier, an MIT urban planning professor blasted the Bay Area for its “arrogant” and “self-serving” land-use policies and traced how developers were routinely stymied by environmentalists and homeowners opposed to new people moving in. Delivering a 1981 commencement speech at UC Berkeley, the university’s top economics student warned that the Bay Area’s housing shortage would result in sharply rising prices and that homeowners were likely to keep fighting any efforts to address that.

The commencement speaker was right, yet too little was done in the years that followed. This lack of reform around land use was largely rooted in the failure of leaders to take on entrenched interests who profited from the status quo—from the investors, developers, and building trades to the homeowners who were fortunate enough to move to a desirable area first.

Today politicians are trying to tackle these structural problems more directly. Policy analysts say California needs to build 3.5 million homes to get serious about solving its housing crisis, and in 2017, California Governor Gavin Newsom committed to reaching this goal by 2025. But this is a tremendous task that would necessitate building roughly 500,000 units a year, when over the past decade, on average, fewer than 80,000 homes were built in the state annually. And there are, as Dougherty observes, considerable impediments that stand in the way, including soaring costs for construction and land. The cost of building a 100-unit affordable housing project in California had increased from $265,000 per unit in 2000 to almost $425,000 by 2016. And that’s an average. In cities like San Francisco, it can cost upward of $850,000 to build a single subsidized unit. When California’s legislature passed a $4 billion bond to build affordable housing in 2017, it was hailed as a serious step forward, one that would amount to a nearly $12 billion effort when paired with private money. But $12 billion divided by $425,000 equals just 28,235 units, or 0.8 percent of the 3.5 million goal. As Dougherty writes, “This sort of math could make a joke of any new funding effort.”

Voters across California have been more supportive of new funding packages for affordable housing over the past few years, but the quiet dread among advocates is that once the public realizes how little effect each influx of money has on the crisis, their appetite for new taxes might wane. “Behind each new affordable housing bond and the additional billions for homeless services was a public who thought they were being generous, when really the new taxes were nothing in comparison to a problem that was getting worse faster than cities could deploy the money,” Dougherty writes.

While the political leaders in Sacramento and on city councils continue to squabble, renters are doing what they can to organize, and Dougherty gives voice to their experiences too. In particular, we hear from teenager Stephanie Gutierrez, who studied every Tuesday night with other community members how to protest gentrification and eviction. One day, Gutierrez returned home to discover that her family’s rent would be jumping by 45 percent.

Gutierrez and the activists she worked with did their best to raise hell. “No hay peor lucha que la que no se hace,” another tenant insisted—there is no worse fight than the one that isn’t fought. But Dougherty doesn’t sugarcoat the hurdles that renters face. “Protests could make [housing] flips more expensive, but not nearly by enough,” he writes. Despite the occasional bad headlines, developers saw easy opportunities to make more money, and landlords were well within their legal rights to raise rents.

Dougherty also follows the YIMBY activists as they mobilize for new subsidized and market-rate housing. Their build-everything philosophy often pits them against anti-gentrification groups, which view new for-profit development as housing policy moving in the wrong direction. But activists like Trauss insist that more housing will help reduce prices for everyone by relieving pressure on strained markets. Dougherty is sympathetic to this argument, but he also notes some of the real limits faced by these mostly white, highly educated activists as they struggle to build a multiracial and cross-class movement.

Perhaps one reason Dougherty is more sympathetic to the YIMBY movement is that unlike many others, it has been more willing to confront the reality that you can’t stop people from moving to dense, crowded cities, no matter how much you wish they’d stay away. As Wiener, who is aligned with the YIMBYs, once vented, “There is a strain of self-described progressive politics in San Francisco that says: ‘Lock down the city’…. Don’t build more housing—just lock it down, and maybe if we dig a moat around the city and put crocodiles in it we can just stop people from coming.”

Despite finding some hope in local activism, Dougherty doesn’t end his book on a particularly optimistic note. The rising costs to build, the increasing polarization, and the failure to take on entrenched special interests, he suggests, could leave California in much the same place it has long been. And yet he writes that there is growing momentum on the legislative level, not just in California but across the country. Since 2017, rent-control bills and ballot initiatives have cropped up in roughly a dozen states, and in February 2019, Oregon became the first to pass rent control statewide. In June 2019, New York legislators beefed up rent control for nearly 1 million apartments in New York City, and California approved statewide rent control a few months later. Meanwhile, the Minneapolis City Council voted to end single-family zoning, a measure intended to boost the housing supply, and Oregon shortly followed suit. In the DC area, where planners say at least 320,000 new units are needed in the next decade to accommodate demand and population growth, lawmakers are considering measures to expand rent control and reduce barriers to construction.

Yet a crucial question in Golden Gates remains unanswered: What can governments do to help those who need housing now without enacting policies that could make the situation worse in the long term, whether by exacerbating displacement and segregation or by contributing to an even more severe shortage down the road?

Some new housing ideas have emerged recently on the left, such as building more housing that would be kept off the market for speculation and profit entirely. The homes guarantee movement, launched in September 2019, seeks to do for housing what Medicare for All would do for health care. While some homes guarantee advocates object to the idea of expanding Section 8 vouchers because they’d like to reduce reliance on the private rental market, others maintain that these policies are not necessarily in conflict with each other. In fact, Sanders campaigned on both a homes guarantee and making Section 8 vouchers available to all who are eligible. “Mixed solutions can feel like a cop-out,” Dougherty writes, “especially in polarized times. And yet, over and over, in city after city, it’s always where people end up and what seems most likely to work.”

He has a point. To move forward, movements will have to find ways to break out of their particular communities and build strength across class lines. In other cases, activists and political leaders might need, as was the case with Medicare for All, to find new language to address existing policy demands. One think tank in Seattle tested YIMBY messaging and found that the word “homes” worked better than “development” and the phrase “walkable and convenient” was more appealing than “density.” In Minneapolis a YIMBY group has opted for the warmer name Neighbors for More Neighbors. These are all worthwhile steps, but the politics won’t be solved by friendlier rhetoric alone. To build more housing, we’ll need to build more power.

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State Workers Seek to Protect Labor Rights As Coronavirus Spreads

Originally published in The Intercept on March 21, 2020.

On Tuesday, a week after declaring a state of emergency due to the spread of Covid-19, Minnesota’s Democratic Gov. Tim Walz signed an executive order pertaining to his state’s 50,000 executive branch employees. The order extended paid leave to all state employees for absences like caring for children due to school closures, and authorized agency heads to waive parts of collective bargaining agreements so as to more easily deploy workers where and when needed. Minnesota law grants the governor such powers during such emergencies.

Publicly, unions representing these workers praised Walz for his action on paid leave, and offered only muted concerns about the collective bargaining measures — stressing they will monitor the situation to ensure employers do not abuse their new authorities.

Privately, though, unions were taken off guard by the governor’s actions, and were unable to get the state to agree to establishing guardrails in the order itself around preventing employer abuse.

Workers are concerned that other states, especially less labor-friendly ones, may follow Minnesota’s lead, and use the pandemic as a pretext to weaken unions in the long term. In California, some employers have been lobbying for a similar executive order, to free themselves of public-sector bargaining restraints. While state employees have made clear they’re committed to flexibly responding to the crisis, unions understand anti-labor managers have wielded emergencies to their benefit in the past.

On Thursday March 12, state union representatives had an in-person meeting with the Minnesota Management and Budget — an agency that governs personnel and finance issues — to check in about the novel coronavirus. In that meeting, which was described as “friendly and nonproductive” by an individual involved who was not authorized to speak about the discussions, union reps talked primarily about paid leave, and also raised concerns around telework, and safety equipment for health and correctional workers.  There was no discussion then of potentially waiving aspects of collective bargaining, and they all planned to meet again on Tuesday, March 17.

But on Monday, March 16, with less than an hour’s notice, the MMB emailed the unions an invitation for a conference call. It was on that call that state officials announced the draft of their forthcoming order, though they did not provide anyone on the call with a written copy of the text.

“It was received as a great surprise,” said one of the participants on the call. “A lot of questions were thrown out, and because we did not have the physical document in front of us, a lot of the questions were just like, ‘What did you say? What’s that phrase?’”

A few hours later union senior staff organized another call among themselves to discuss how to respond. They were less concerned about Walz and far more worried about how agency heads below him might interpret their new broad authorities. Many leaders of individual state agencies have been in charge since Republican Gov. Tim Pawlenty’s tenure, and are not supportive of unions. Under the new order, employers can change schedules, work locations, or work assignments without notice, whereas in the past employees were given a notice period to rearrange their lives.

On Monday evening, union leaders emailed MMB officials and Walz’s chiefs of staff to request the administration publicly commit to “working with union representatives to swiftly and fairly address issues that may come up as a result” of this proposed order. The unions specifically requested a sentence be added to this effect, and that the administration commit to saying this in a press conference.

But all they were able to win was the addition of a vague line saying, “When circumstances allow, Minnesota Management and Budget will work in partnership with the labor unions affected by any adjustments to the provisions of collective bargaining agreements or memoranda of understanding.”

When the executive order was signed on Tuesday, union leaders largely bit their tongues. “We are thankful for the Governor’s action in authorizing this new policy specifically to address COVID-19 leave,” stated the Inter Faculty Organization, which represents employees at Minnesota’s seven state universities. Walz was elected in 2018 with strong union support, and the IFO praised the paid leave measure for “setting the standard for the rest of the nation.”

The executive directors of American Federation of State, County and Municipal Employees Council 5 and the Minnesota Association of Professional Employees also issued a joint statement that recognized the “magnitude” of the executive order. “We won’t stand in the way of the state’s powerful response to the crisis, but we won’t idly sit by if that power is abused,” they said. The unions emphasized they had “worked with the State” to ensure the changes would be only limited to dealing with Covid-19.

In an emailed statement MMB Commissioner Myron Frans said his agency “is working in strong partnership with our union partners during this rapidly evolving emergency situation. We continue to work together with the shared goals of preventing the spread of COVID-19, keeping employees healthy, and providing critical services to the people of Minnesota.”

So far, rank-and-file members have not reacted negatively to the order — and have been focused more on the new expansive rights around paid leave, which they are happy with. Union leaders suspect the rubber will hit the road if and when cases of coronavirus ramp up in Minnesota, and working conditions start to change.

“We’re particularly concerned about things like conditions in prisons, where workers already deal with severe understaffing,” said the union source. And while their grievance procedures are technically unaffected by the executive order, the reality is the standard grievance process doesn’t move quickly enough during emergencies, meaning workers could be left without recourse in the event of employer abuse.

Some unionized state workers in California were recently threatened that their collective bargaining rights were soon to be waived too.

Ashley Payne, a state worker in Contra Costa County, one of the nine counties in the Bay Area, has been increasingly alarmed by the lack of safety protections for workers like herself who have been required to come into the office. She works in her county’s Employment and Human Services division, where she helps administer welfare.

As an elected officer for her union, SEIU Local 1021, Payne has been fielding concerns from colleagues about the lack of hand sanitizer, disinfectant wipes, and masks — including for social workers who have to do home visits.

On Wednesday, Annie Barrett, the division manager for Payne’s department, emailed staffers about working conditions under Covid-19, and said they were “exploring temporary telecommuter opportunities.” Payne forwarded the email to Jeffrey Bailey, her county’s labor relations manager, to say that while her union strongly supports this step, she wants to make it clear in writing that SEIU 1021 does not agree to making this change permanent. “We will not allow the County to exploit this crisis as a pretext for ushering in permanent changes,” she wrote. “We continue to expect timely notice of upcoming changes so we can Meet and Confer over changes to wages, benefits, and working conditions.”

In his emailed response, Bailey agreed the assignment of staff to work from home was temporary, but emphasized that things “are different” under emergency conditions (Emphasis in original).

“Furthermore,” Bailey wrote, “the state of California has informed us that the Governor intends to pass an executive order to temporarily suspend many of the provisions of the MMBA [Meyers-Milias Brown Act, the state law governing public sector collective bargaining] during this emergency period.”

Upon receiving this email, Payne reached out to her local’s leadership, who reached up the chain to the state level. Soon after Rene Bayardo, a lobbyist with SEIU California, emailed to say his team had looked into this threat, and suggested Bailey was wrong. “The indication from the [Newsom] administration is that public employers are asking to suspend MMBA but this is NOT under consideration,” Bayardo wrote.

Payne, who has worked at her job since 2014, said her employer has grown far less responsive to union concerns since the Janus v. AFSCME decision in June 2018. “Knowing what their track record is I’m not surprised they’re trying to bust the union,” she said. Rather than distancing itself from unions during the pandemic, Payne added, local government should lean into “much closer collaboration because we know our work best and we know how best to ensure safety.”

Bailey told The Intercept that he doesn’t have “any direct knowledge” of California Gov. Gavin Newsom’s plans with respect to MMBA. “I heard about it, as we say, ‘through the grapevine,’” he wrote in an email. “This has been discussed widely among public agencies, but I don’t have any specifics or inside information. … We are all assuming that the suspension would apply to things like the meet and confer obligations and notice requirements.”

Crystal Page, a spokesperson with California’s Labor & Workforce Development Agency, said Newsom “has been clear that California needs flexibility to respond” and that he “understands the importance of collective bargaining and the need to ensure workers have a voice on the job.”

Nelson Lichtenstein, a labor historian at University of California, Santa Barbara told The Intercept he hadn’t heard anything about moves to suspend collective bargaining in California, though acknowledged it is certainly not unprecedented for anti-union leaders to try and exploit crises to weaken labor.

Lichtenstein pointed to the aftermath of 9/11, when Congress created the Transportation Security Administration. Using legislative authority, a George W. Bush-appointed TSA administrator denied the 40,000 TSA workers collective bargaining rights, claiming it was necessary for national security. It wasn’t until 2011, under a new Obama appointee, that TSA workers finally won the right to bargain.

Another example was following Hurricane Katrina, when Bush unilaterally suspended federal law governing workers’ pay on federal contracts in areas of Alabama, Florida, Louisiana, and Mississippi. Bush justified his move by calling Katrina a “national emergency” and said ignoring federal rules around construction costs “will result in greater assistance to these devastated communities.”

“People were outraged, it was just so obvious he was using it opportunistically,” said Lichtenstein. About six weeks later, in response to the backlash, the White House reversed course.

Payne said she worries that if labor-friendly California does follow Minnesota’s example, it would quickly motivate many other states to follow, particularly Republican-controlled states. “This is why I feel we have to hold the line,” she said. “If California does it, then everyone else will be like, ‘We should have been doing this a long time ago.’”

A California Bill Could Transform The Lives of Gig Workers. Silicon Valley Wants Labor’s Help To Stop It.

A BILL WITH potentially huge implications for the so-called gig economy is making its way through the California state legislature this summer, laying bare cleavages within the labor movement. Companies like Uber and Lyft are seeking a workaround to the legislation, which would classify their drivers as employees rather than independent contractors, opening the door to a host of employment benefits. Some prominent labor unions, meanwhile, have been in talks with Silicon Valley, even as they voice their commitment to securing workers’ rights.

Sponsored by Lorena Gonzalez, a Democratic assemblywoman from San Diego, the bill, known as AB 5, seeks to codify and expand Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The landmark 2018 California Supreme Court decision made it much more difficult for companies to classify workers as independent contractors rather than employees, who have access to workplace protection laws like minimum wage, overtime, unemployment insurance, and the right to join a union.

At the center of the debate over AB 5 is its impact on “gig economy” companies like Uber and Lyft, though it would also affect older, more established industries like retail and trucking. There’s a practical reason for California to enact the legislation: The state estimates it loses $7 billion in payroll tax annually due to companies misclassifying employees as independent contractors.

Uber and Lyft have been forthright about their desire to come up with some sort of compromise deal, under which they could continue to classify their workers as independent contractors, in exchange for some additional driver benefits. They insist that the flexibility that attracted drivers to their companies in the first place would vanish if all those people were to claim employee status.

Gig economy workers who support the legislation view it as a necessary step toward their ability to collectively organize. Both the Service Employees International Union and the Teamsters union have played leading roles in advocating for the legislation. They have publicly said they will fight a watered-down AB 5, but a series of private meetings between labor leaders and tech companies have raised suspicion that the unions are more open to leaving gig workers as independent contractors than they’ve formally let on.

Opponents of AB 5 recognize its proposed classification standard could extend well beyond the Golden State and have been lobbying hard —both in California and Washington, D.C. — to stop it. Sen. Bernie Sanders introduced a bill in the U.S. Senate after Dynamex came down to narrow the definition of independent contractors, legislation that is backed by other leading presidential candidates Sens. Kamala Harris and Elizabeth Warren.

AB 5 passed the California State Assembly in May, and last week the state’s Senate Labor, Public Employment and Retirement Committee passed the bill, moving it on to the Senate Appropriations Committee for further revisions. It’s unlikely to reach the full Senate floor until late August or September, and both sides are planning to ramp up their advocacy in the coming weeks.

The Dynamex decision laid out a three-prong test to separate independent contractors from employees. Under the court ruling, independent contractors are workers who have relative independence from the entity paying their wages, whose work is separate from the type of business the entity is typically engaged in, and who typically do the type of work that the entity hired them to do. Uber and Lyft’s pursuit of a carve-out under AB 5 is part of a larger fight over exactly which industries can claim exemption from that test.

A number of occupations already have. The bill originally exempted certain workers who set their own rates like licensed insurance agents, certain health care professionals, and some hairstylists and barbers. Last week, the state Senate labor committee added a host of additional categories for exemption, including freelance writers, grant writers, and private investigators.

California Gov. Gavin Newsom, a Democratic ally of both the tech industry and labor unions, has not taken a formal position on AB 5 but said on a podcast last month that he’s “into compromise” and has “been trying to seek it for many, many months.” The Los Angeles Times editorial board recently endorsed some sort of gig economy carve-out, calling AB 5 in its present form “overkill.”

SHORTLY AFTER THE Dynamex decision came down, the California Chamber of Commerce formed the I’m Independent Coalition to fight the new worker classification standard. Coalition members include the California Hospital Association, the California Restaurant Association, the California Retailers Association, Handy, Lyft, Uber, and Instacart. The Internet Association, a group that includes Google, Amazon, LinkedIn, and Facebook, is also a member.

As Bloomberg reported in August, the business groups mobilized to quietly lobby lawmakers for new legislation or executive action that could neutralize the consequential Dynamex decision.

At the same time, Uber and Lyft were gearing up to take their companies public, which meant they faced increased pressure to mitigate their labor costs. Barclays recently estimated that classifying California drivers as employees could cost Uber and Lyft, respectively, $500 million and $290 million annually.

In an April Securities and Exchange Commission filing, Uber bluntly wrote that reclassifying its drivers as employees “would require us to fundamentally change our business model, and consequently have an adverse effect on our business and financial condition.” Lyft laid out similar concerns in its March SEC filing, acknowledging that while “we continue to maintain that drivers on our platform are independent contractors in legal and administrative proceedings, our arguments may ultimately be unsuccessful.”

Pressure is also mounting as drivers of these ride-hailing services ramp up their own activism, in response to falling pay rates and rising expenses. The tech giants anticipate this to continue. In its SEC filing, Uber wrote that “driver dissatisfaction will generally increase” going forward, as they “aim to reduce Driver incentives” to boost their financial performance.

Konstantine Anthony is one of those dissatisfied drivers. He’s been working full-time for Uber over the last 4 1/2 years in Los Angeles County, and when he first started out, he said, he used to make almost $26 an hour before expenses. That figure has now fallen to about $22. Anthony has gotten involved with the SEIU-backed Mobile Workers Alliance to support both AB 5 and the right of drivers like him to form a union.

He doesn’t buy Uber’s line that they’re trying to protect drivers who wish to work just a few hours a week. “The way they reward you on the app is you get higher and higher bonuses when you drive 60 or 70 hours a week,” Anthony said. “They’re giving lip service about protecting part-time workers, but their actual practices are about incentivizing those driving 40+ hours a week.”

IN A STUNNING example of how much pressure the ride-hailing companies are under, Dara Khosrowshahi, Uber’s chief executive, and Logan Green and John Zimmer, the co-founders of Lyft, collectively wrote a June op-ed in the San Francisco Chronicle saying their companies are “ready to do our part for drivers.” While the tech leaders argued against reclassifying drivers as employees, they said they were open to amending existing law to allow independent contractors access to benefits like paid time off, education stipends, and retirement planning, as well as better rates for time spent driving passengers (but not time spent transitioning between passengers). And rather than a union, the tech executives said they’re open to some sort of “driver association” that can advocate for the needs of workers.

To bolster their case, Uber and Lyft say that most drivers don’t actually want to be classified as employees, as most just drive occasionally to pick up some extra, flexible income. The companies point to a 2018 statewide survey of California independent contractors, which found that only 7 percent of independent contractors wanted to be classified as employees. That poll, notably, was conducted by EMC Research and sponsored by the Chamber-backed I’m Independent Coalition. It included a sample size of 1,040 respondents, including 387 gig economy workers, a majority of whom had not heard about the Dynamex decision.

A 2018 nationwide poll yielded similar results. The Rideshare Guy blog surveyed approximately 1,200 Uber and Lyft drivers and found about 76 percent of respondents said they’d prefer to remain independent contractors, including a majority of full-time drivers.

A spokesperson for Lyft said 91 percent of their drivers across the country drive fewer than 20 hours a week, and 76 percent drive less than 10 hours. They said they suspect their California-specific numbers “are the same or very similar” to their national figures.

Uber and Lyft warn that the flexibility drivers say they highly value would be lost if they were no longer independent contractors — adding that they’d likely need to limit drivers’ hours and institute shifts. They also say wages could fall further. “Lyft would only need a fraction of the drivers it has now if it moved to an employment model, meaning thousands would lose their opportunity to earn with Lyft entirely,” a company spokesperson added.

Uber did not return multiple requests for comment.

While it may be true that most drivers who sign up for Uber and Lyft drive just a few hours per week, industry researchers say the full-time drivers account for most of the revenue generated for the companies. Recent data collected by the JPMorgan Chase Institute found that almost 57 percent of transportation platform earnings go to the top 10 percent of earners.

“These data and other combine to make me believe that the majority of TNC trips are provided by drivers who rely on TNC earnings for most or all of their income,” transportation policy expert Bruce Schaller told The Intercept over email, using the initials for “transportation network company,” an industry term for ride-booking companies.

Anthony, the Uber driver, doesn’t buy the argument that he’d lose his flexible work schedule if he were classified as an employee and calls that a “false narrative.” Treating workers fairly, he argues, doesn’t inherently change the nature of a flexible business. “If Uber and Lyft tried to take that flexibility away, I don’t know any driver who would still work with them,” he said. “And there are a dozen companies that are coming up that will maintain that flexibility and pay workers as employees.” (Via is an example of a ride-sharing company that pays its drivers an hourly wage.)

Other pro-AB 5 advocates concede that some things about Uber and Lyft’s business models would likely change, but they say these changes would ultimately be for the better. For example, it’s true that the companies might employ fewer people, since the cost per trip would increase. The upshot is that the companies could also create a more environmentally-friendly business. Having fewer drivers on the road could also increase earnings for workers. The JPMorgan Chase Institute found that the growth in supply of online platform transportation drivers between 2013 and 2017 led earnings to fall by 53 percent.

The National Employment Law Project, a union-backed legal advocacy group, also notes plenty of examples of flexible work environments where workers are classified as employees. “Cake decorators, home researchers, nurses, couriers, and restaurant workers have all been found to be employees, despite the fact that they could choose their own schedules,” a recent NELP fact sheet says. “Laws don’t force workers into choosing between having basic workplace protections and having flexibility; companies do.”

Uber and Lyft’s “status as employers is really quite clear,” according to David Weil, who led the U.S. Department of Labor’s Wage and Hour Division during the Obama administration. While there are some cases where companies really do have workers operating in an ambiguous space between employees and contractors, he wrote in a recent LA Times op-ed, “Uber and Lyft are not among those close, gray area cases.”

GIG ECONOMY WORKERS backing AB 5 have been calling both for AB 5’s passage and the path for them to form a union under state law, particularly in light of barriers recently erected by the federal government. In May, the Donald Trump-appointed general counsel at the National Labor Relations Board issued a memo saying Uber drivers are contractors, not employees. The U.S. Department of Labor came to a similar conclusion in April, in an opinion letter saying gig workers are contractors.

“It’s really hard to organize under federal labor law, and if federal law says the drivers are not covered then they could be covered under state law,” said Ken Jacobs, chair of the Labor Center at the University of California, Berkeley. “California has established its own protections for agricultural workers, so there does seem to be that precedent.”

Representatives from SEIU and the Teamsters have been meeting with tech companies and lawmakers over the last several months to discuss the proposed legislation.

Late last month, the New York Times reported that the AB 5 meetings organized by the tech companies “have created deep rancor within the labor ranks and set unions against one another.” Some workers have raised alarm at the prospect their unions may be selling them out.

The unions have defended themselves against critics who are wary of those talks. The companies emphasize that they were just invited to attend the meetings, did not organize them themselves, and were not there to negotiate any sort of watered-down proposals. As part of their efforts to support gig workers, Bob Schoonover, president of the SEIU California, told The Intercept over email that they and other labor leaders have been working “across government, labor, private, and non-profit sectors to open the door for robust conversations and the sharing of ideas and concepts.” He stressed that “these are just ideas and concepts that have been used to collaborate with partners on how we might be able to help workers find the best path forward – they are nothing more and should not be misconstrued as such.”

Doug Bloch, the political director for the Teamsters Joint Council 7, which represents 23 locals in Northern California, has also been in meetings with Uber and Lyft to discuss AB 5. He did not return requests for comment.

Though labor is taking pains to say they’re not negotiating any sort of compromise, the tech companies have depicted the meetings in different terms.

“We’ve been working with lawmakers and labor leaders on a different solution to AB 5 so drivers can continue to control where, when, and how long they drive,” a Lyft spokesperson said.

“Industry is at the table with labor and ready to find a path forward to modern protection for independent contractors that preserve their ability to work independently,” added Courtney Jensen, the executive director for California and the Southwest for the trade group TechNet.

In June, Héctor Figueroa, then president of SEIU 32BJ in New York, co-wrote a New York Daily News op-ed criticizing his state’s labor federation for backing a bill that would let unions collect dues from gig workers without giving those workers full rights as employees. He called the New York proposal “a giveaway to gig companies” and then went on to criticize his colleagues in California for “working to cut a backroom deal” that would also exempt app drivers from employee status. Last week, at age 57, Figueroa unexpectedly died from a heart attack.

The day after his death, Caitlin Vega, the legislative director for the California Labor Federation, tweeted about honoring Figueroa’s legacy, and noted that he used his power to stand with vulnerable taxi workers, gig workers, and immigrant workers.

In an interview with The Intercept, California Labor Federation spokesperson Steve Smith explained that representatives from SEIU and Teamsters have met with the tech companies, and then have come back to share with other unions in their federation what they learned and how those conversations went.

“SEIU and the Teamsters are not at a point of some imminent deal, the discussions that we’ve had have been primarily about some outlines of the proposals that SEIU and the Teamsters have been discussing with the tech companies,” he said. “We’ve had some honest and open discussions in labor, and I think generally people have been appreciative of the SEIU and the Teamsters for being able to share with other unions what is happening and the progression of those discussions.”

Smith said the labor movement is “completely unified” around efforts to pass AB 5, but he suggested that unions may be open to alternative paths for drivers of ride-hailing apps specifically. “AB 5 is much broader than just TNCs, and we understand, as I think those unions do, that AB 5 serves a purpose that’s much bigger than anything that happens with the TNCs,” he said.

While there are different ideas on the table, Smith said labor “wants to make sure we’re giving workers the opportunity if they so choose to join a union and that we’re setting a floor — not a ceiling — for the rights they’re entitled to.”

He dismissed the idea that there’s a serious divide in the labor movement over this. “I think that’s been overblown to an extent,” he said. “Obviously we’re a big movement, and we have a lot of thoughts and opinions, sometimes strong opinions, but our goal is always to come together as a movement to do what’s best for the largest amount of workers that we can.”

DRIVERS ON BOTH sides of the issue are expected to ramp up their advocacy as the bill continues to make its way through the state Senate. In late March, hundreds of Uber and Lyft drivers in Los Angeles went on strike(and turned off their apps) to protest Uber’s recent 25 percent per-mile rate cut. Drivers launched another one-day strike on May 8, timed with Uber’s IPO, and were joined by fellow drivers in Boston, Minneapolis, Philadelphia, D.C., San Diego, San Francisco, and Chicago.

Then last week, hundreds of drivers from across California went to Sacramento to rally for and against AB 5. Drivers who came out to protest the bill were reportedly offered up to $100 in extra pay from Uber and Lyft, the Los Angeles Times reported. Recode previously reported that some drivers felt misled by in-app messages and emails sent by Uber and Lyft urging them to sign petitions or call their legislators to protest the legislation.

One driver who went to Sacramento to support AB 5 was Ann Glatt, who drove for Lyft for four years before recently quitting due to burnout from falling wages. Though Glatt, who is 62, is looking for other jobs now, she’s stayed involved with Gig Workers Rising, an organizing group in Northern California backed by SEIU and the Teamsters.

Glatt said she doesn’t trust any sort of Uber and Lyft compromise deal. “I don’t take much credence in what they say; they’re not for drivers, their business is not to have drivers make a living wage,” she said. “They come out in the media and stay stuff, but they’ve never offered to meet with us. If they say they’re willing to give us a living wage, then do it now. You don’t have to have AB 5 passed to just pay the living wage you were paying us a few years ago.”

California’s Ed Reform Wars

Originally published in The American Prospect on August 2nd, 2016.
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This past April, the California Court of Appeals unanimously struck down the controversial Vergara v. California decision, in which a Los Angeles County Superior Court judge ruled that five longstanding teacher protections—including a two-year probationary period for new teachers and a layoff system based on how many years one’s been teaching—violated students’ constitutional right to an equal education. The lower court judge had argued that these labor protections make it harder to fire bad teachers, and bad teachers significantly undermine a child’s education. In a 3-0 decision, the appellate judges concluded that the labor protections themselves are not responsible for harming students, even if school administrators sometimes implement them injudiciously.

Students Matter, a nonprofit backed by Silicon Valley entrepreneur David Welch that’s representing the Vergara plaintiffs, has filed an appeal to California’s Supreme Court. Their supporters argue that children pay the price for such job protections as teacher tenure and seniority. They also point to research that suggests making it easier to fire teachers has positive effects on student achievement. Critics counter that the real problems students face—particularly low-income students of color—are not teacher job protections, but their under-resourced, highly segregated schools that fail to attract and retain high-quality educators. At a time when states like California face real teacher shortages, they say, the focus on firing teachers is misplaced at best.

Since the lower court’s Vergara ruling two years ago, similar suits challenging teacher job protections have been filed in New York and Minnesota.

While David Welch and his allies remain committed to waging legal battles against tenure, seniority, and other job protections, they are also pushing for statutory changes via the California legislature. Following the original Vergara decision, Republican lawmakers introduced a package of three bills to extend the time it would take a teacher to earn tenure, to repeal the “last-in, first-out” statute that makes layoff decisions based on seniority, and to establish an annual teacher evaluation system. These bills, however, got nowhere in the Democratic-controlled statehouse.

“I think the Vergara decision helped increase public demand for improvements in our education system, but I always think it’s better when we can make policy changes through the legislature rather than the court system,” says Assemblywoman Kristin Olsen, the Republican who sponsored the teacher evaluation bill.

Back during the original Vergara trial, unions and some education experts also argued against making policy changes through the courts. A spokesperson for the California Teachers Association told The Wall Street Journal that legislators were already looking at ways to amend the contested laws, and Randi Weingarten, the president of the American Federation of Teachers, said that extending the time it takes to get tenure in California is a legitimate idea, but that such changes should be done through the political process, not the judiciary.

Today, however, local unions are fighting back against attempts to change employment laws through the legislature. California is one of just five states that grants teachers tenure after two years—32 states require a three-year probationary period, and nine states require four or five years. And, as critics are quick to point out, the reality is that California administrators must file paperwork for tenure status after a teacher has been working for just 15 to 18 months if they’re to meet state deadlines. Even those who are very supportive of teacher tenure feel lengthening the amount of time it takes to earn it makes sense. Before granting genuine job security, they say, make sure it’s for an individual you’d really want in front of students for the long haul.

But the California Teachers Association and the California Federation of Teachers have both strongly opposed bills aimed at modifying tenure, even legislation from which their adversaries have withdrawn support. While the final outcome of the Vergara case remains to be seen, the unions’ firm stance against reform could help prompt tenure opponents to mount an initiative campaign—a routine occurrence in California politics. That may not bode well for the unions: A 2015 poll of registered California voters found that most respondents think teachers in their state receive tenure too quickly, and that seniority should count less during the layoff process. If changes to tenure and seniority were to come before the voters, there are decent odds that such a measure would pass.

The concept of teacher tenure in American public education, as Dana Goldstein documents in her book The Teacher Wars, was an idea originally imported from Germany. Progressive-era reformers saw that giving teachers more job security was often a good way to incentivize people to join the low-paid profession. Tenure also made it harder to fire teachers, which consequently made it more difficult for the urban political machines that then dominated cities to dole out teaching jobs as political favors.

Though teachers unions have existed in the U.S. for a long time, the idea of collective bargaining didn’t take off until the second half of the 20th century, as membership in teachers unions grew, and public sector unionism gained strength more broadly. The first teachers union to win collective bargaining rights was New York City’s United Federation of Teachers in 1963, and by the end of the 1970s, after a series of labor strikes across the country, 72 percent of public school teachers were covered under collective bargaining agreements.

As a result, teacher tenure in unionized school districts means being covered under a “just cause” provision in a collective bargaining agreement. In a non-unionized workplace, employees can be fired simply because an employer doesn’t like them. The added job security that comes with tenure means that a boss would need to legally demonstrate that firing their employee was justified—that there is “just cause” for the worker’s termination. Tenured employees also have the right to contest their firing.

Tenure critics rightly note that in many school districts, the process an administrator has to go through in order to dismiss a teacher for cause ends up being so lengthy and expensive that it can feel nearly impossible. In many cases, it’s easier, and a lot cheaper, to keep an ineffective teacher employed, rather than jump through the legal hoops to remove them. In New York City, officials who make failed attempts to terminate teachers often end up just issuing fines.

Union contracts generally distinguish between two kinds of dismissals. The first is termination for cause; for example, an administrator should be able to fire you if you’re an ineffective teacher or if you sexually harass a student. The second type of dismissal is through a layoff due to an economic circumstance—generally, cuts to school district budgets during recessions.

Many teacher tenure critics also want to end the process of “seniority”—which requires that districts make layoff decisions based on the number of years a teacher has been working. Opponents of these “last-in, first-out” statutes say that high-quality young teachers are penalized under this system, since their few years in the profession makes them more likely to be canned, regardless of their job performance. This also disproportionately hurts students in high-poverty schools, critics say, because young teachers are generally assigned to those schools.

Some states, including many that are substantially unionized, have already explicitly banned seniority when making layoff decisions, and others require teacher job performance to be the primary factor considered. Ten states—including New York and California—however, still require that the number of years a teacher has taught be a partial, or the primary factor for districts when making layoff decisions.

Defenders of seniority say that if you want to fire someone for poor performance, then do it for cause, not disguised through the layoff process. In effect, tenure and seniority work together to give employers the flexibility to lay people off when economic circumstances require it, but in a way that protects teachers from being arbitrarily targeted, or targeted because they were paid more than more junior faculty. Seniority-patterned layoffs exist specifically to protect the “just cause” rights.

“Until very recently, these rules were fairly uncontroversial,” says Leo Casey, the executive director of the Albert Shanker Institute, a think tank affiliated with the American Federation of Teachers. “They prevented older, more expensive teachers from being discriminated against during lean economic times, and administrators often appreciated the simplicity of ‘last-in, first-out’, especially because there was no consensus on how to best evaluate teachers’ performance.”

In February, before the Vergara appeals court decision came down, California Assemblywoman Susan Bonilla, a Democrat, introduced a bill aimed at finding some legislative common ground for the various employment statutes being challenged in court. While the three bills sponsored by Republicans in 2015 got nowhere, some believed an effort led by a Democrat might get more traction. Both the California Teachers Association and the California Federation of Teachers have donated to Bonilla’s campaigns.

Bonilla proposed, among other things, giving principals the option of waiting until a teacher’s third or fourth year to grant tenure, and placing poorly performing teachers in a program that would provide increased professional support. If the ineffective teacher received another low performance rating after a year in this program, Bonilla’s legislation would enable schools to fire the teacher through an expedited process. The LA Times editorial board said her bill would make the rules “more reasonable and practical, while preventing capricious or vindictive firings of teachers by school administrators.” Education reformers initially took no position on her bill, but following April’s Vergara appeals decision, Students Matter, the group that brought the case, decided to back it.

However, Bonilla still lacked support from school administrators and teachers unions, and the California Teachers Association was urging its members to fight her bill. EdSource, a nonprofit news site focused on education in California, reported that the union posted an “action alert” for teachers to call their lawmakers, labeling the proposed legislation “an all-out assault” by “corporate millionaires and special interests.”

In June, Bonilla introduced an amended version of her bill, one that would require new teachers to work for three years before becoming eligible for tenure. Her bill no longer included provisions to create a new teacher evaluation system, to require teachers with poor performance reviews to be laid off before those with less seniority, and to remove many of the dismissal rules that administrators found frustrating. In an interview with The American Prospect, Bonilla explained that she needed to narrow her legislation’s scope because that’s what the Senate Education Committee requested. “They are looking for policy change, but my original bill was too wide-ranging,” she says.

Despite being significantly watered-down, the bill was still opposed by the unions, while the education reform groups that originally offered support came out in strong opposition, too. However, the Association of California School Administrators and the California School Boards Association now came forward with endorsements of the amended legislation.

“In my opinion, I really needed administrators’ support. That’s why we took LIFO [last-in, first-out] completely out and worked with the superintendents and the school board association to craft a version they could back. They’re part of the education community, they really understand what needed to be changed,” says Bonilla. The Association of California School Administrators is listed as one of Bonilla’s top campaign contributors.

Students Matter called the amended bill “a bad deal for California students” and urged members of the California legislature to reject it.

“The reform groups wanted everything, and some wanted everything but only if it was written exactly by them,” says Bonilla. “They didn’t want to come on board if it didn’t come out of their house.” She says Students Matter, and another reform-oriented group, Teach Plus, withdrew their support when her legislation no longer addressed seniority.

“If I had to choose who I was going to go with, I’d choose the administrators, the people actually running the schools. That was my priority in terms of really getting sound policy,” says Bonilla.

The California Teachers Association called upon its members to organize against the amended bill, saying it would take rights away from educators, and negatively impact students.

On June 29, the California Senate Education Committee held a hearing,ultimately rejecting Bonilla’s amended bill. Just two of the committee’s nine senators voted in favor—and both are terming out in November. (Five opposed it, and two others didn’t vote.)

“I do feel that at least having the hearing on the bill, which went on for about an hour and a half, was really important,” says Bonilla, who is also leaving office in November. “I felt it was important, as a Democrat, that I stand up and say, we as legislators have an obligation to our constituencies to find a solution and not pretend that the status quo is alright, just because the union says it is.”

One senator to vote in favor of Bonilla’s bill was Carol Liu, the chairwoman of the education committee. Liu told Bonilla that she could amend her bill further over the July recess period if she wanted to try and get more support. Bonilla took Liu up on this and submitted a new version that does not extend the time it takes a new teacher to earn tenure. All Bonilla’s latest version does now is grant school districts the authority to negotiate an alternative dismissal process with their local bargaining units, if they so choose. Right now, under California state law, local bargaining units are prohibited from negotiating the terms of their dismissal process. In 2014, the teachers union in San Jose tried to do this, and asked the California state board of education for a waiver so they could extend their probationary period to three years. But the state board denied the San Jose school district and its union their request. (The California Teachers Association argued that such changes should only come from the state legislature, not through waivers.) Bonilla’s twice-watered-down bill, then, would make such a change.

As of August 1st, it was still unclear whether Bonilla’s new bill would receive a waiver and come up for a re-vote. The American Prospect was unsuccessful in getting an interview with the California Teachers Association, despite repeated attempts over several weeks.

I asked Josh Petchalt, the president of the California Federation of Teachers, why his union opposed Bonilla’s amended bill in June. Wasn’t a one-year extension of the probationary period a fairly good compromise?

Petchalt, though, does not think the tenure law needs to be changed, and believes changing it would not solve the underlying issue of how tenure is assessed. “I think all the commotion about making it three years or five years really misses the point about what it means to have a rigorous procedure for evaluating teachers,” says Petchalt, who taught high school for more than two decades. “I don’t think it takes very long to decide if an adult should be working with kids. I think it happens relatively quickly if that person is being observed on a regular basis by properly trained administrators who know what they’re doing.”

Some leading academics share Petchalt’s assessment. During the Vergara trials, Jesse Rothstein, an economics professor at UC Berkeley, testified that two years was long enough for principals and school administrators to determine whether or not to award tenure. He cited his own research, which suggests that granting tenure earlier, rather than later, is better for students. Rothstein also argued in favor of using seniority to handle layoffs, which he says is a less costly, subjective, and controversial method than using annual performance evaluations.

If Bonilla’s revised-again bill, which has been stripped of its probation provision, comes up for a revote, she says she really hopes there will be “three courageous legislators” who will vote for its passage. “Allowing a union to bargain locally is not an anti-union position,” Bonilla says.

If her amended bill does not pass, or even if it does, the education reformers may seek to place an initiative on the 2018 ballot. Bonilla says she’s heard that there already been some money raised to start that effort.

If such a measure is placed before voters, I asked Petchalt, wouldn’t it look bad to oppose a bill that wouldn’t end seniority, wouldn’t end tenure—just merely extend the probationary period to three years, which is how long it takes in most states anyway?

“I don’t doubt that the optics are not great, but our members spend a career in the classroom, they are committed to public education, to children, and so it’s not good enough to say well there’s an element of goodness in this specific bill if the overall effect would make things worse,” he says. Petchalt points to the Vergara trial, and the broader political effort to weaken teachers unions and collective bargaining. At a time when public sector workers are under attack, when public education is under attack, he says, his union feels compelled to fight back against “a broad narrative.”

“The teachers union supported No Child Left Behind and it got them nowhere,” Petchalt adds. “And they supported [NCLB] for exactly what you’re saying, they didn’t want to be seen as folding their arms and being opposed to everything. [Some union leaders] said if we support [NCLB], then they’ll stop their attacks. But it furthered the attacks, creating a dynamic that resulted in very bad things happening.”

Petchalt is probably right to suspect that even if his union and the CTA backed Bonilla’s bill, even if union leaders agreed to change the probationary period to three years, education reformers would be unlikely to stop fighting for more concessions. In Pennsylvania, where teachers are eligible for tenure after three years, reformers are pushing to extend it to five years, insisting that three years is too short. In this political climate, unions have decided that ceding no ground and putting forth alternatives is preferable to compromising and hoping the disputes get resolved.

Whether this is the most strategically savvy move, though, is unclear. A survey released in 2012 of 10,000 educators found that, on average, teachers felt it was reasonable to work 5.4 years before being evaluated for tenure. Another survey released in 2015, sponsored by the pro-reform group Teach Plus, found that 65 percent of California teachers think that a probationary period between three and five years makes sense for administrators making tenure decisions.

“In California, when legislators can’t come up with a solution, it ends up going on the ballot,” says Bonilla, who worries about lawmakers abdicating their responsibilities, and the electorate voting on issues they’re not well informed about. “We as legislators have to be the ones to demand that the reformers and the centrally-controlled unions be reasonable. There is no one else who is going to do it.”

Hillary on Charters: Yes and No

Originally published in the The American Prospect on July 6, 2016.
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On Tuesday morning, as the FBI issued a recommendation to not indict Hillary Clinton for her use of a personal email server while secretary of state, the presumptive Democratic presidential nominee came before more than 7,500 delegates at the National Education Association’s Representative Assembly in Washington, D.C., and praised public charter schools—to the audible dismay of some of the delegates—while condemning for-profit ones.

The moment of tension emerged when Clinton started to discuss replicating the success of “great schools”—including public charter schools. She noted there had been too much focus on so-called “failing” schools.

Though Clinton has been a long-time supporter of school choice, and her husband helped to catapult charters to the national stage when he was president, she took heat from charter school advocates in November when she remarked that “most charter schools … don’t take the hardest-to-teach kids, or, if they do, they don’t keep them.” Although an adviser emphasized shortly thereafter that Clinton remains a “strong supporter” of public charter schools, many reformers remained leery of her commitment.

But on Tuesday, Clinton gave charters a shout-out, resulting in the loudest boos she received the entire morning. “We’ve got no time for these education wars!” Clinton told the crowd. Facing the evidently anti-charter audience, Clinton quickly pivoted to denouncing for-profit charter schools, saying, “We will not stand for [them].”

The Representative Assembly is the annual conference for the NEA, the nation’s largest labor union, which gathers each summer to set its political agenda for the coming year. The union, with its nearly three million members, endorsed Clinton in October, following the American Federation of Teachers, which endorsed her last July. Throughout the campaign, Clinton’s ideas around public education have been much debated, with self-proclaimed reformers worried she would be hostile to their policies, while many rank-and-file teachers remained skeptical that Clinton would stand up for unions and fight efforts to privatize public schools. 

Despite these concerns, the mood in the plenary hall on Tuesday was overwhelmingly enthusiastic; members wore “Educators for Hillary” T-shirts, waved signs in support, and cheered with excitement.

“I want to say right from the outset that I’m with you,” Clinton told the audience early on in her speech. She promised that if elected, educators will “have a partner at the White House” and that they’ll “always have a seat at the table.”

Clinton framed her education policy proposals around the slogan of “TLC,” or teaching, learning, and community. She threw out a lot of ideas that met eager applause, from raising teacher salaries to reducing the role of standardized testing, to creating universal preschool for every child. She discussed “repairing crumbling schools” and making general investments in school facilities and technology.

Clinton’s rhetoric on charters mirrors language in the recently released Democratic Party platform, which says the party is committed to providing parents with “high-quality public school options” and expanding such options—namely neighborhood schools and charters—for low-income children. The platform comes out against for-profit charter schools, which it says are “focused on making a profit off public resources.”

According to the National Alliance of Public Charter Schools (NAPCS), a charter advocacy group, just under 13 percent of charters are run by for-profit companies, though in cities like Detroit, more than 80 percent of charter schools are run by for-profits. However, the distinction between for-profit and nonprofit is often messier than groups like NAPCS readily admit: Nonprofit charters can still hire for-profit management companies to run their schools.

Some states have begun banning for-profit charter schools, or passing laws that make opening them more difficult. Last year, California legislators tried to ban for-profit charter schools from operating in their state, but Democratic Governor Jerry Brown vetoed the bill, saying he did not “believe the case has been made to eliminate for-profit charter schools in California.” The momentum against for-profit schools has clearly grown more pronounced since then, and also reflects growing divisions within the education reform coalition, between those who champion market-based reforms, and those who push for greater accountability.

In her speech, Clinton also denounced her likely opponent, Donald Trump, who enthusiastically endorsed charter schools during a March primary debate and has said he opposes Common Core standards and “may cut the Department of Education.”

The NEA carries formidable political weight. According to the union, its members represent one out of every 58 general election voters. Rallying those teachers who preferred Senator Bernie Sanders for president to not only vote for Clinton in November but also help campaign for her will be a pressing priority for the union’s leadership.

Following the speech, the union released a statement saying that Clinton’s remarks “held no punches in articulating a clear and inspiring vision of opportunity for every student in America, regardless of ZIP code.”

California’s New Crisis Pregnancy Center Law Creates a Roadblock for Anti-Abortion Activists

Originally published in In These Times on October 30, 2015.
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Earlier this month, California Governor Jerry Brown signed the nation’s first statewide law to regulate crisis pregnancy centers (CPCs). CPCs are facilities that work to counsel women out of having abortions, offering them resources like diapers, baby formula and maternity clothes, but also often disseminating misleading or outright false medical information. Boosted by government funding under George W. Bush, they have proliferated over the past 15 years, with an estimated 3,500 nationwide—outnumbering real abortion clinics 3-to-1.

California’s Reproductive Freedom, Accountability, Comprehensive Care and Transparency (FACT) Act, which overwhelmingly passed the state assembly in May, is being hailed as a landmark victory in a nationwide effort to push back against the rise of CPCs.

The new law, set to take effect January 1, will govern California’s nearly 170 CPCs, about 60 percent of which operate with no medical license. The law requires unlicensed facilities to post a notice—in “no less than 48-point type”—stating that they have neither a state medical license nor licensed medical staff. Licensed CPCs, for their part, will be required to inform women about available public assistance for contraception, abortion and prenatal care.

Whether or not the law can withstand a court challenge, however, remains to be seen. The decades-old movement to regulate CPCs has been repeatedly thwarted by First Amendment challenges.

Although CPCs began cropping up in the late 1960s as individual states lifted their bans on abortion, the clinics flew under the radar until the 1980s and 1990s, when they became a subject of a heated debate that went all the way to halls of Congress. Detractors argued that CPCs’ strategies to lure in women—such as offering free non-diagnostic ultrasounds and staffing their non-medical volunteers in white lab coats—amounted to false advertising. Defenders said their actions were protected speech.

The passage of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996—or “welfare reform”—increased federal funding for abstinence education and helped to fuel the expansion of CPCs, as In These Times reported in 2002. The law enabled the Bush administration to funnel $60 million in federal abstinence-only funds to crisis pregnancy centers between 2001 and 2005, often doubling or tripling the centers’ annual budgets.

In response, a number of investigations into CPC practices were launched. A 2006 congressional investigation, initiated by Rep. Henry Waxman (D-Calif.), looked specifically at CPCs that received federal funding, and found that most provided women with false or misleading medical information, which “often grossly exaggerate[ed] the risks.” (Federal funding for CPCs continues today, despite the Obama administration’s efforts to end it.) NARAL, a national pro-choice organization, has also been investigating CPCs for more than a decade, and has discovered that staffers routinely overstated the risks of abortion or simply lied—telling women that ending a pregnancy would lead to infertility, breast cancer or even suicide. A 2008 NARAL investigation into 11 crisis pregnancy centers across the state of Maryland found that “every CPC visited provided misleading or, in some cases completely false, information.”

Drawing on the Waxman report and NARAL’s investigations, in 2009, Baltimore passed the first-ever legislation designed to curb CPCs’ misleading advertising practices. Challenging CPCs from a false advertising perspective was, in part, a strategic decision. As Slate’s Emily Bazelon reported in 2009, “There’s a whole branch of law, commercial speech, to explain why false advertising gets less First Amendment protection.” The law required Baltimore CPCs to display signs—in both English and in Spanish—clarifying that they do not provide abortion or birth control referrals. Similar laws were soon passed in New York City, Austin, and San Francisco.

These ordinances were all challenged in court on First Amendment grounds. CPC backers argue that the regulations violate their religious freedom and their right to free speech. Baltimore’s law was struck down in 2011 and is still tied up in court appeals. Austin’s was overturned, as were key aspects of New York’s law. Given their free services and nonprofit statuses, judges have tended to see CPCs’ speech as “noncommercial”—a designation that generally receives greater constitutional protection than commercial speech. But San Francisco’s law, which passed in 2011, has thus far withstood legal challenge.

Pro-choice advocates in California treaded very carefully in drafting the FACT Act. “We paid a lot of attention to the bills crafted in other cities,” says Amy Everitt, the state director of NARAL Pro-Choice California. NARAL also enlisted the help of Attorney General Kamala Harris, a Democrat, to identify language that might be deemed unconstitutional.

Everitt explains that laws which require centers to post signs describing what they do not provide (such as abortion referrals) have tended to be more legally vulnerable than those that require facilities to distribute “neutral” information about available government services. So the FACT Act only requires licensed clinics to inform women of the many services available to pregnant women. In California, state Medicaid funds can cover the cost of an abortion, and millions of Californian women became eligible for Medicaid with the passage of the Affordable Care Act.

“In California, we have some of the best pro-choice policies in the whole country, but if women aren’t aware of what’s available to them, then they can’t use them,” says Everitt. “They need to find out about their options, and they need to find them out when they are actually out seeking care and information.”

Crisis pregnancy centers have already filed two suits against the Reproductive FACT Act. The law “is an outrageous and unconstitutional violation of both the right of free speech and the right of freedom of religion for our members in California,” said Thomas Glessner, the president of the National Institute of Family and Life Advocates, in an email quoted in Life News.“The Act unconstitutionally forces pro-life pregnancy centers, on pain of government penalty, to engage in government disclaimers that they would not otherwise provide.”

In response, Everitt notes that the state has a “public health interest” in ensuring that women can access high-quality reproductive care. “Women are seeking their options,” she says. “They are going online and they are looking for information to make their decisions about unintended pregnancy or pregnancy scares, and they were not getting the information they wanted in certain places like CPCs.”

Crisis pregnancy center advocates usually deny that CPCs mislead women, arguing that those who come to visit are well aware of the clinics’ anti-abortion slant. But investigations by reproductive-rights groups and Congress have found that CPCs often set up shop in close proximity to real reproductive health facilities and hide their anti-abortion agenda when women call seeking information. CPCs have also spent significant sums of money to advertise their services misleadingly in newspapers, on billboards, on social media and through Internet search engines.

While the fate of California’s new law remains uncertain, energized advocates are determined to build on their newfound political momentum. Everitt says she hopes their new law will serve as a model “for every state to pursue.”The new measures are “what it looks like to respect women,” adds Ilyse Hogue, the president of NARAL Pro-Choice America.“Empower us and trust us to make the best decisions for ourselves and our families.”

California Teachers Unions Push for Cushion Before Upcoming SCOTUS Case

Originally published in The American Prospect’s Tapped blog on September 8, 2015.
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This fall, the Supreme Court will hear arguments in Friedrichs v. California Teachers Association, a case that could severely weaken the power of public-sector unions. The justices will decide whether such unions can charge “agency fees” (also known as “fair share fees”) to individuals who wish to dissociate with their union’s political lobbying but still benefit from workplace collective bargaining.

These reduced annual dues help stave off “free riders”—those who enjoy the advantages of union membership without financially contributing to the union’s work. The case’s lead plaintiff, Orange County teacher Rebecca Friedrichs, insists her free-speech rights are denied by paying agency fees, and argues that unions won’t actually suffer if she wins in court. “It’s hard for me to describe,” she told The Washington Post. “I just want liberty. I want to stop this silencing of my voice and the silencing of millions of teachers out there.”

As the Prospect’s Justin Miller put it, “the Friedrichs case has the potential to overturn decades of legal precedent [since 1977] that has become intractably embedded in union strategy—and state law.”

In the meantime, The Sacramento Bee reported that teacher unions in California are pushing Governor Jerry Brown to embrace a last-minute measure that would permit unions to address all new teachers during their orientations. Such conversations could help unions recruit new members, and thereby mitigate the negative effects of an unfavorable ruling in Friedrichs. As reporter Christopher Cadelago wrote:

Up against the clock in the Legislature, the labor groups are pushing for a bill that could give unions some time—a half-hour—to meet with employees to voice the benefits of union participation. That, some believe, could prevent workers from fully withdrawing from their ranks if the court rules against fair share fees.

One version of the teacher unions’ bill is “nearly identical” to a California bill that grants unions up to 30 minutes to speak to new home health-care workers during their orientation period. That law was passed shortly after the Supreme Court’s 2014 Harris v. Quinn ruling, which said that Illinois home health-care workers could not be required to pay agency fees. (Harris v. Quinn avoided the free-speech questions that will be considered in Friedrichs.)

Groups like the Association of California School Administrators, the California Association of School Business Officials, and the California Special Districts Association say that bills like the ones proposed by the teacher unions should be considered only after the Supreme Court makes its final decision in Friedrichs, and only when there is more time available for public comment.

I’d guess that if California legislators were planning on supporting a bill like this, they’d wait until after the Friedrichs decision came down, just as the home health-care worker bill passed after the Harris case was decided. Either way, we won’t have to speculate for much longer, because California’s legislative session ends this week.

Will Students Soon Be Tested for ‘Grit’?

Originally published on The American Prospect Tapped blog July 7, 2015.

The National Assessment of Education Progress (NAEP)—nicknamed “the Nation’s Report Card”—is the largest nationally representative assessment that tests what American students know and can do in different subjects.

Curiously, it was recently announced that beginning in 2017, NAEP plans to start measuring so-called “non-cognitive skills” like motivation and grit in the background surveys they issue to all test-takers. Additionally, according to Education Week, questions about “self-efficacy and personal achievement goals may be included on questionnaires for specific subjects to create content-area measures.”

Though schools won’t be judged based on these NAEP measures, the article says, “other such tests for accountability purposes may be on the horizon.” A coalition of seven districts in California are reportedly developing an accountability system that will evaluate schools in part by including measures of “growth mindset, self efficacy and self-management, and social awareness.” These are supposed to be in place next year.

The odd thing about this NAEP announcement is that very recently psychologists Angela Duckworth and David Scott Yeager published a paper in the journal Educational Researcher arguing that while emerging findings on character skills are promising, existing research is not ready to be incorporated into accountability assessments. Angela Duckworth told NPR that she feels “enthusiasm” for these measures “is getting ahead of the science” and that wanting to use these skills for evaluation would be gravely premature.

In April I published a long piece on the rise of grit fervor in education reform, which looked at the ways in which current tools to measure grit and other character traits are flawed. There are significant limitations to self-reported assessments, and Duckworth and Yeager’s subsequent journal paper echoed these concerns. Researchers haven’t given up on developing improved measures, and they are currently exploring future possibilities like computer simulations.

The intellectual humility Duckworth and Yeager demonstrated in their paper (and this video) is quite impressive, and should not be understated. Why school districts and NAEP are still intent on moving forward quickly with measuring these skills then deserves some further clarification.

With New Protections Tied Up in the Courts, Home Health Care Workers Aren’t Waiting Around

Originally published in The American Prospect on April 3rd, 2015.
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Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.

But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.

Four decades ago, Congress decided that home healthcare workers should be classified more like babysitters who provide “companionship,” rather than as workers entitled to basic protections. Nursing home employees, by contrast, are fully covered under the Fair Labor Standards Act (FLSA), despite performing many of the same tasks. As home healthcare has ballooned in recent years, these occupational distinctions have become harder to justify.

According to the Bureau of Labor Statistics, the U.S. will need one million new home healthcare workers by 2022. But the work is draining, the pay is paltry, and turnover is high. When adjusted for inflation, home healthcare workers’ average hourly wages have declined by nearly 6 percent since 2004. In 2013, the average earnings of home healthcare workers totaled just $18,598. 2013 was also the year that the Obama administration decided it was well past time to update FLSA’s policy. Because the DOL has the authority to amend federal regulations, it was able to enact this change without seeking Congress’s approval.

Though the new DOL rule-change would most directly benefit home healthcare workers, it carries implications for all domestic workers, including nannies and housekeepers. “By improving the conditions and protections in one area, you’re broadly boosting the sense that this is dignified work,” says Elly Kugler, an attorney with the National Domestic Workers Alliance, (NDWA) a group representing domestic workers in the United States.

Whether that change will actually be implemented is another question. Last year three industry groups filed a lawsuit against the DOL rule-change, insisting that it would have a “destabilizing impact” on home healthcare and hurt millions of elderly individuals. On December 22, 2014, a D.C. district judge vacated the rule for third-party employers, arguing that the executive branch cannot make such a regulatory change. A few weeks later, the same judge also vacated FLSA’s revised definition of “companionship services.” The DOL filed a challenge in appeals court, and arguments will be heard later this spring. Some suspect this may ultimately make its way to the Supreme Court.

Then, on March 20th, Labor Secretary Tom Perez sent a letter out to all 50 governors, urging them to focus on budgeting the minimum wage and overtime protections now, “to ensure that [they] will prepared if the Department prevails” in appeals court. Across the country, activists are also pressuring their representatives to focus on these issues. Yet many lawmakers are using the litigation as an excuse to avoid reckoning with the thorny budgetary questions. This means workers may not see minimum wage, overtime, and travel pay increases anytime soon.

“In Georgia, we’re seeing that our lawmakers are not talking about these issues,” says Tamieka Atkins, who leads Atlanta’s chapter of NDWA. “They have the attitude that we’re not going to move on this until the lawsuit comes down.” In response, Atkins’ group launched a campaign to lobby lawmakers and health agency commissioners in advance of their next legislative session. They also started a petition—“Governor Deal: All Eyes Are On Georgia”—asking for gubernatorial support towards minimum wage and overtime.

Activists in Texas are also applying pressure to their leaders. In January, domestic workers launched a home healthcare campaign, bringing together consumer groups, disability rights organizations, and labor unions. The following month—for the first time ever—domestic workers traveled to Austin to share their personal stories and lobby state legislators. “It was a really great opportunity because we agitated on different levels,” says Mitzi Ordonez, a domestic worker organizer at the Fe Y Justicia Worker Center in Houston. “What we found is that many of the lawmakers just didn’t know about these [DOL] changes.”

Compared to Texas and Georgia, some states have made greater progress towards implementing the new labor protections. California, which already pays its home healthcare workers minimum wage, allocated new funds for overtime pay in its 2014-2015 budget, and was prepared to pay workers more at the start of 2015. But after learning about the federal lawsuit, California Governor Jerry Brown decided to postpone the overtime pay, even though there is nothing legally obligating him to do so. Frustrated activists have launched a campaign in protest; they organized meetings with state legislators, held rallies and candle light vigils, and even set up a“Justice for Homecare Tribunal”—a mock trial against the state. “The best thing for us to do is to not rest on our laurels,” says Doug Moore, the executive director of the United Domestic Workers of America. “The governor wants this to go through the courts, but we will use pressure to change his position.” Moore says that if the DOL rule-change is upheld in appeals court, they will then move to demand retroactive overtime pay back to January 1st.

Yet for some states that have reckoned with the rule-change, the results haven’t always been encouraging. “What we have been seeing, unfortunately, is that you can equally comply with FLSA by paying overtime and travel time, or by setting caps on the number of working hours,” says Alison Barkoff, the Director of Advocacy at the Bazelon Center for Mental Health Law. This scenario is playing out in states like Arkansas, which is looking to cap homecare workers to just 40 hours per week, and to limit each worker to just one customer per day. In effect, this would enable states to avoid paying workers overtime and travel costs. But such measures will hurt employees who make their living by piecing together multiple part-time jobs. It may also impact consumers who need more than 40 hours of care, or who may have a harder time finding someone willing to work for just a few hours per day.

Some hope that the Americans With Disabilities Act (ADA) and the Olmstead v. L.C. Supreme Court case, both of which protect disabled individuals from discrimination and unjustified segregation, will help consumers fight back against cuts to healthcare services. “The ADA and Olmstead provide important protections to consumers, but they won’t completely prevent a state from implementing restrictive policies,” Barkoff explains. “The laws do not prohibit a state from capping worker hours, so long as the state has a process for exempting individual consumers who will be seriously harmed. Most consumers will have to shift the way their care is provided.”

Meanwhile, labor activists maintain that their interests are not at odds with those of healthcare consumers, because quality care depends on creating sustainable working conditions. Many in the disability community have also signed amicus briefs in support of extending minimum wage, travel time, and overtime protections to home healthcare workers. “I think it’s important to know that there isn’t just one disability rights community,” says Sarah Leberstein, an attorney with the National Employment Law Project. “Many groups are very supportive, but they’re also really concerned about states taking it seriously and implementing the rules in a thoughtful way that doesn’t result in cuts to services.”

Even if upheld, the DOL rule-change may be hard to enforce. In New York City—a place that has instituted a progressive domestic workers’ bill of rights and a paid sick leave policy—activists have learned first-hand how enforcing these types of laws can be quite challenging.

“It’s really hard to be reliant on a complaint-driven process where workers have to come forth, but still fear retaliation,” says Irene Jor, a New York organizer with NDWA. Many domestic workers are also isolated in private homes, without much regular interaction with other workers who might provide them with moral support to raise grievances. Even once complaints are filed, not all are likely to be dealt with. “The Department of Labor, both on the federal and state level, is incredibly underfunded and does not have enough investigators,” says Leberstein. “So often they can’t simply respond quick enough, and they can’t do targeted enforcement.”

Nevertheless, if the DOL rule-change were upheld, it would be an important achievement. Some businesses would certainly have to adjust their operations to accommodate the new labor protections, but supporters of the rule-change insist that the industry’s opposition is overblown. According to national surveys, less than 10 percent of home healthcare workers even report working more than 40 hours a week. “We’ve also got many examples of big home care agencies that have figured out ways to pay workers properly, and still provide good care,” says Leberstein, who points out that many organizations already operate in states that require minimum wage and overtime protections. “So they’ve either figured out a way to do it and still earn profits, or they’re admitting to violating the laws in their state.”

Asking the public to pick between providing quality care and treating workers fairly is ultimately a false choice wrought through a political culture of austerity. States could avoid this by increasing funds towards Medicare and Medicaid, which would help ensure that the disabled and elderly can access the high-quality and flexible care without compromising national labor standards and worker dignity.

Though the future of the law is still unknown, one thing is clear. This is an issue that cannot be put on hold—thousands of health homecare workers live in poverty and 10,000 more baby boomers turn 65 every single day.

Recalled But Not Repaired: Why we have millions of cars with unfixed safety recalls — and Germany has none.

Originally published in the Fall 2014 issue of The American Prospect.
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On May 30, Angela Davidson, her husband Clarence, and their twelve-year-old daughter Kira drove a 2010 Dodge Ram down Highway 15 in California, when they heard a loud knock, followed by a popping sound. Seconds later, their truck came to a screeching halt. After seeing smoke rolling into the truck, Angela opened the door to jump out, though one of her legs was quickly burned. Clarence barely had time to get Kira out before the entire truck became engulfed in flames. The truck kept rolling backwards, causing a brush fire that burned more than three acres before the firefighters could put it out. Highway 15 was closed for almost four hours.

Eleven days earlier, the Davidsons had purchased the Dodge Ram from a CarMax dealer in Irvine; CarMax is the nation’s largest retailer of used cars and trucks. Angela says her family went to CarMax specifically because they advertise that all their vehicles are thoroughly examined, with expert technicians stamping a “Certified Quality Inspection” on each one.

When the Davidsons signed a contract on May 19 and drove their truck off the lot, they believed they had just purchased a safe vehicle for their family. A few days later, they contacted Dodge customer service with a question, and the representative informed them that, oh, by the way, there appears to be a July 2013 safety recall issued for the pinion in your truck’s rear axle, and it’s very important to get it fixed right away.

“When I found out it was under recall I was furious,” said Angela. “I just felt like, this is so wrong, why would you guys sell us a car with an open recall like that? I thought of course CarMax would apologize and take the truck back.”

But CarMax—both the Irvine dealer and corporate headquarters—refused to take responsibility and told the Davidsons that it was up to them to repair their truck. Although the Davidsons then took the car to a local Dodge dealer, which may hold some responsibility for the ultimate explosion, CarMax apparently sold the Davidsons an unsafe vehicle. “How did they know that we wouldn’t be killed the same day we bought it?” Angela wrote in a draft testimony of the experience. “The answer is, they didn’t know. They just left it up to chance that we would even find out about the safety recall.”

Stories about vehicles like the Davidsons’ take on added significance in light of this year’s General Motors scandal, in which the automaker finally recalled nearly 2.6 million cars for an ignition switch defect known to company officials for more than a decade and linked to at least 54 crashes and 13 deaths. But six months after the recall, Automotive News reported that roughly 1 million car owners had yet to contact a dealership to fix their flawed ignition switches, and GM was struggling to track down contact information for many of those people.

In the United States, about one in every six cars on the road, or 37 million vehicles, has an unfixed safety recall. These are not minor problems; in safety recalls, the manufacturer or the National Highway Traffic Safety Administration (NHTSA) has determined that a car or piece of motor vehicle equipment poses an unreasonable risk to safety or fails to meet minimum safety standards. When a recall is in effect, manufacturers are legally obligated to do the repairs for free. Consumers, however, are not required to fix their car, regardless of the defect’s severity. In 2011, the Government Accountability Office (GAO) found the annual recall compliance rate in the United States averages 65 percent.

The latest GM episode is not the first major auto recall crisis to prompt public concern about unrepaired safety hazards. In August 2000, Ford Motor Company and Bridgestone/Firestone jointly announced a recall of 6.5 million tires after they linked them to more than 200 deaths and at least 700 injuries. Six years after the recall announcement, however, experts estimated that more than 200,000 faulty tires had yet to be replaced. An investigative reporter in Georgia even found some of the recalled tires still for sale in 2013.

In direct response to the tire recall, Congress passed the Transportation Recall Enhancement Accountability and Documentation Act (TREAD). TREAD established a new early warning reporting system, which requires manufacturers and their suppliers to regularly submit information about possible safety issues to NHTSA. “The TREAD Act represents an important first step towards strengthening our nation’s motor vehicle laws,” President Bill Clinton declared when he signed the bill in 2000. “And its vigorous and quick implementation will help save lives and prevent injuries.”

But recalls haven’t fallen. In fact, the number hit a new record this past July, with the most vehicles—39.85 million—ever recalled in a single year. “The problem is only growing,” said Chris Basso, a spokesman for Carfax, a web-based service that tracks the history of every vehicle based on its Vehicle Identification Number (VIN). “We have a recall [compliance] rate that leaves 35 percent of cars unrepaired and that number is likely to go up.”

“I want every vehicle fixed, and I’ve been clear about that all along,” GM chief executive Mary Barra said on CNBC, adding, however, that “ultimately it’s the consumer who makes that choice.”

But why are the repairs on safety recalls optional? The risk, after all, is not just to the car owners but also to those who ride with them and others on the road. In light of the public safety hazard, some countries have decided that it makes little sense for consumers to choose whether or not to repair defects on recalled cars. Germany, for example, makes those repairs mandatory. The German Federal Motor Transport Authority enforces that rule by refusing to renew the vehicle registrations of owners who fail to fix their cars. In 2010, Germany revoked owners’ registration due to outstanding safety recalls more than one thousand times. Consequently, the German annual recall compliance rate is 100 percent. Moreover, although German manufacturers aren’t legally required to bear the cost of the repair as they are in the United States, they do so nearly 100 percent of the time.

This combination of full compliance by the customer and full cost paid by the manufacturer creates an economic incentive for German car companies to build better cars the first time around. “There is a popular saying in Germany: Quality is if the customer comes back—not the product,” said Stephan Immen, a spokesman for the German agency. “The one responsible for the product knows what it means and acts corresponding to that.”

The United States could follow Germany’s example and make car registration renewal contingent on auto recall completion. Such a policy would be easy to carry out because DMVs can check each car’s VIN at the time of registration. Some states are already doing this successfully for energy emission standards. In California, if a vehicle owner fails to respond to an energy emission recall notice or the car fails to meet the state standard, the owner’s registration renewal will be denied until the repair is complete. Organizations like the Center for Auto Safety favor applying this same concept to auto safety recalls.

While taking time out of one’s busy life to get a car repaired isn’t something people are excited to do, states typically give owners 30 to 60 days to get it done, and in these cases, the owners have to pay for the cost of the emissions repair themselves. In contrast, if a similar system were applied to auto safety recalls, the repairs would be done at the manufacturer’s expense. Of course, giving up one’s car, even for just a few hours, may cause frustration and anxiety—often to the point where not fixing the car feels like the more sensible option. But manufacturers already sometimes provide free rental or loaner vehicles to individuals while their car is being repaired. GM recently offered this option to consumers who need to fix their car’s defective ignition switch.

Some auto safety reformers hope that small policy changes—like using particularly urgent language in the mailed notice letters—will motivate more owners to fix their cars. “Some manufacturers send pablum [recall notices], so people don’t really think they’re that important,” said Joan Claybrook, a veteran auto safety advocate who headed NHTSA from 1977 to 1981. “NHTSA has the authority to review those letters before they go and make sure they say ‘Alert! Alert!’”

Others have tried to raise the recall compliance rate by hiking penalties for irresponsible manufacturers. One bill introduced in Congress would require key management officials to disclose serious dangers with their products or face a fine and up to five years in prison. Another would require manufacturers to submit accident reports to federal regulators, who would need to make those documents immediately available to the public. And a third would eliminate the cap on civil fines—now $35 million—that the Department of Transportation can levy on automakers for failing to report known defects.

The sponsors of these measures hope that a combination of harsher manufacturer penalties and heightened efforts to disseminate information to the public will lead, eventually, to safer roads. But they have shied away from the most direct approach: making registration renewal dependent on getting the safety defects repaired. The battle over two more limited measures—requiring recall repairs in used cars and rental cars—suggests where the political problems lie.

Rental cars present what might seem to be an easy case for auto recall reform. After all, the rental car companies should be concerned about protecting their reputation for quality and the value of their fleets. But until recently, rental car companies could and would lease cars that were subject to safety recalls. In 2004, sisters Raechel and Jacqueline Houck, 24 and 20 respectively, rented a Chrysler PT Cruiser from an Enterprise Rent-A-Car dealer. This model had been recalled a month earlier after experts realized that the steering hose could leak and cause a fire. But the women were unaware because rental companies aren’t legally required to disclose safety recall information to customers. Driving down Highway 101 in northern California, the Houck sisters’ rental car caught fire and hit an oncoming semi-tractor trailer; they died instantly. After the accident, Enterprise tried to settle the scandal quietly, with a $3 million offer in exchange for the family’s confidentiality. The Houcks rejected the proposal and have been leading consumer safety efforts since.

Rental companies at first adamantly opposed changing their lenient recall policies, but activists and legislators continued to apply pressure. As a result, the four largest companies—accounting for 93 percent of the rental car market—now pledge not to rent vehicles that are subject to a safety recall.

But consumer groups insist that without a law requiring recall repairs, individuals are forced to just trust rental companies to abide by their public commitments. Thus reformers are fighting for the passage of a Senate bill, the Raechel and Jacqueline Houck Safe Rental Car Act, which would bar rental car companies from renting recalled vehicles to consumers. Even the American Car Rental Association, the policy voice representing the rental car industry, now supports the legislation.

But some powerful groups have worked hard to prevent the bill from becoming law. The Alliance of Automobile Manufacturers, the auto industry’s trade association, has refused to support the bill on the grounds that “it would give rise to a myriad of anti–consumer impacts” like increased rental costs for consumers. The real reason, though, is a concern that such a law would expose them to lawsuits.

“If Avis or Hertz has to take a car out of service for a week to get it fixed, particularly if it’s subject to a recall and the repair is not available, the rental companies may be looking at a car being out of service for three months,” said Clarence Ditlow, executive director of the Center for Auto Safety. “The auto companies are fearful that if this bill goes through they will be sued by the rental companies for the loss of use.”

The powerful National Automobile Dealers Association (NADA), representing sixteen thousand new car and truck dealerships with about thirty-two thousand domestic and international franchises, also opposes requiring rental companies to get defective cars fixed, arguing that the bill fails to differentiate one recall from another. (NHTSA does not distinguish recalls.) NADA says rental companies should only agree not to lease or sell defective vehicles if manufacturers issue “Do Not Drive” letters for recalls they deem to be the most serious. Rosemary Shahan, executive director of Consumers for Auto Reliability and Safety (CARS), says this is a cheap rhetorical trick because it is “extremely rare” for a manufacturer to voluntarily issue “Do Not Drive” letters—getting a company to issue a recall notice is hard enough as it is.

NADA’s political power also helps explain why Congress hasn’t passed a used car safety bill—a version of the Safe Rental Car Act, but for used cars. In California, a bill—S.B. 686—was introduced in 2013 that would have prohibited auto dealers from selling recalled used vehicles to consumers. Statewide polling revealed that 88 percent of Californians backed this policy. Angela Davidson testified about her CarMax experience at an S.B. 686 hearing in June. But the California New Car Dealers Association, CarMax, and others managed to kill the bill. Activists are now considering a 2016 California ballot initiative, but gathering enough signatures to qualify could cost nearly $1.5 million.

NADA insists publicly that increasing financial penalties for manufacturers who delay recall notices, rather than barring dealers from selling unsafe vehicles, would “better result in consumer safety.” But dealers, like manufacturers, are no doubt worried that new legislation would hurt their ability to sell cars, and consequently cut into their profit margin.

The recall problem is compounded by the growing shortage of qualified mechanics and technicians able to diagnose issues and make the necessary repairs. According to the Auto Care Association, demand for auto technicians has outstripped supply since 2010, and the nation is short about ninety thousand mechanics given what is needed. One of the reasons Germany has done so well in retaining its manufacturing base is its investment in vocational educational programs. Germany’s ability to produce high-quality cars—and to fix them when problems arise—is undoubtedly linked to its strong commitment to train people to build, maintain, and repair them.

Withholding car registrations makes the most sense as a way to raise compliance with safety recalls, but other alternatives have also surfaced to fix the unfixed-vehicle problem.

Shahan says, “First, we’ve got to focus on things that don’t penalize the consumer who didn’t make the defective product.” CARS supports legislation requiring DMVs to issue recall warnings when vehicle registration notices get sent in the mail. Car insurance companies could also help by sending reminder notices to customers when they see evidence of an outstanding safety recall. “What we’ve found is that the reason a lot of the unfinished recalls are not done is because the consumer doesn’t know about it,” said Ditlow. Research shows that newer cars are repaired in higher numbers than older cars, so the sooner a recall is announced and the sooner the owner learns about it, the greater chance there is that it will actually be repaired.

This past February, NHTSA announced that it would institute a new mandatory label to help owners clearly identify recall mailings. But relying on the mail is proving increasingly difficult, as owners change addresses or hand off their cars, and the DMV often lacks reliable, updated records.

In light of these challenges, NHTSA and manufacturers are exploring new ways to reach vehicle owners through such means as text messaging, mobile apps, and emails. But some auto safety advocates worry about the growing digital divide. “Not everyone has access [to the Internet],” said Shahan, who also says that government agencies need to do more to reach people who speak languages other than English.

Despite the political hurdles, momentum is building for more substantial auto recall reform. In April, the Obama administration recommended that Congress ban the sale and rental of unfixed recalled vehicles. Then this summer, New York City became the first city to prohibit the sale of recalled used cars. Jay Rockefeller, the outgoing chairman of the Senate Commerce Committee, also recently introduced legislation that would give NHTSA new authority to order unsafe vehicles off the road, rather than merely suggesting they get repaired. His bill, the Motor Vehicle Safety Act of 2014, would also bar the sale of unrepaired used cars.

In the public policy world, there are a lot of intractable problems for legislators, activists, and reformers to tackle. Unfixed auto safety recalls are not one of them. This is a problem we can solve. It is not a fantasy to imagine a decent system that helps vehicle owners expediently take care of their safety problem with as little inconvenience as possible, so millions of unsafe cars are no longer on the road. It may take several steps; perhaps dealing with rental cars first, then used cars, and then all cars. But eventually, we could see an improvement in public safety and perhaps even higher-quality automotive manufacturing.

Auto safety reform has produced some of the most important public health advances in the last half-century; the advent of seatbelts, airbags, and drunk-driving legislation has saved hundreds of thousands of lives. Each time the government took steps to tighten safety regulation, the auto industry argued that the proposed changes were too costly, unfair, or futile. But the changes have been accepted, and hardly anyone wants to go back. The poll showing 88 percent of Californians favoring the Safe Rental Car Act ought to encourage politicians to tap into the public support for reform. As Shahan says, “These days, there isn’t much that polls at 88 percent.”