Amid Conservative Assault on Organized Labor, Democratic Lawmakers Are Advancing Laws to Expand Workers’ Rights

Originally published in The Intercept on August 5, 2019.
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PUBLIC-SECTOR EMPLOYEES IN states with Democratic majorities have made significant legislative gains in recent months, despite the U.S. Supreme Court’s landmark 2018 decision in Janus v. AFSCMEwhich found that unions could no longer collect bargaining fees from workers who do not pay membership dues.

More than 22,000 state workers in Nevada and Delaware gained the right to collectively bargain this year thanks to recently passed legislation. Colorado, home to more than 26,000 state employees, is expected to follow suit next year.

With Nevada and Delaware’s new legislation, passed this summer, there are now 26 states that recognize state employee bargaining rights, as do Puerto Rico and the District of Columbia, according to a spokesperson for the American Federation of State, County, and Municipal Employees, or AFSCME. Twenty-four states either outright prohibit collective bargaining or do not authorize meaningful bargaining, such as Wisconsin, which heavily curtailed the ability of public-sector employees to negotiate in 2011.

On the federal level, congressional representatives are also working to bolster the rights of public-sector workers, though any chance of enacting legislation is highly unlikely unless Democrats win the White House and the Senate and maintain their hold on the House of Representatives in 2020. On June 25, Sen. Mazie Hirono, D-Hawaii, and Rep. Matt Cartwright, D-Penn., reintroduced the Public Service Freedom to Negotiate Act, which would, for the first time, set a minimum nationwide standard of collective bargaining rights for the nation’s 17.3 million public employees. Among other things, public employees would be required to recognize their workers’ unions if they’re “freely chosen” by a majority vote, and employers would be required to bargain with workers over wages, hours, and other terms of employment. If public employers refuse, then the legislation grants the federal government the authority to intervene.

The bill is backed by 2020 presidential candidates, including Sens. Elizabeth Warren, Bernie Sanders, Amy Klobuchar, Kamala Harris, Kirsten Gillibrand, and Cory Booker.

This legislative push comes as organized labor was bracing for the worst following the Supreme Court’s Janus decision, which was expected to significantly deplete union coffers. In its 5-4 decision, the court struck down more than four decades of legal precedent and concluded that unions could no longer collect payments from non-dues-paying members in exchange for collective bargaining services. This opened the door not only for nonmembers to stop paying fees, but also for union members themselves to opt out altogether.

While the full extent of Janus’s blow to the labor movement may not be felt for several years, at a labor conference in February, public-sector union leaders said the first year’s impact had been less devastating to membership than expected. AFSCME President Lee Saunders said that while his union had lost 100,000 agency-fee payers since the court’s June decision, they had also managed to flip 310,000 agency-fee payers into dues-paying members. “For every member that we lost, we gained seven,” Saunders declared. Other unions reported relatively minimal losses, like the American Federation of Teachers, which lost 84,500 agency-fee payers after Janus, but also gained 88,000 new members between November 2017 and November 2018.

Still, many experts say the drop-off in membership could happen slowly, rather than an immediately significant decline. Michigan, which became a right-to-work state in 2012, has lost nearly 130,000 union members over the last seven years, or 16 percent of union membership. This year, Michigan unions have reported at least $20 million less in revenue than they did in 2012.

There’s also the risk that unions will have trouble recruiting new members moving forward. Mike Antonucci, a teachers union analyst, said recently that “current members are unlikely to resign in any great numbers. Over time, however, they will retire. The burden will be on the unions to recruit new members in the same percentages as they enjoyed pre-Janus.” The National Education Association saw a 0.5 percent increase in its membership compared to the year before, Antonucci found; however, New York accounted for 80 percent of that nationwide growth. By contrast, 10 state affiliates saw membership drops of 3 percent or more, including North Carolina, which saw a 6.8 percent drop in 2018.

IN THE FACE of the conservative assault on organized labor, workers and lawmakers in blue states are experimenting with new laws and forms of organizing to make it easier to unionize and negotiate on the job.

In Nevada, Democratic Gov. Steve Sisolak, signed a bill in June granting Nevada’s more than 20,000 state workers the right to collectively bargain, a right they’ve been denied since 1965. Sisolak, who was elected in 2018, pledged in his first State of the State address in February to get this legislation passed. His election placed the state government fully in Democratic control for the first time since 1992.

According to AFSCME, the legislation marks the largest expansion of collective bargaining for state workers anywhere in the country in the past 16 years. It benefits a broad swath of workers, including nurses, caretakers, and correction officers.

Conservative opponents of the bill argued that granting collective bargaining rights to state workers would hurt taxpayers and Nevada’s budget, even though there is little empirical evidence in support of that assertion. Local government workers in Nevada have been able to collectively bargain since 1969.

According to researchers at the Economic Policy Institute, a progressive think tank, state employees in Nevada earn between 1 and 13 percent less than their private-sector peers in total compensation, and their health care benefits are less generous compared to state workers in other parts of the country. Workers who advocated in Carson City for the legislation, however, went to great lengths to say that it was not just about wages and benefits, but also things like working conditions and safety. Rick McCann, head of the Nevada Association of Public Safety Officers, said for example that now his members can bargain over things like body-worn cameras and dashcams.

In order to get the bill passed, Nevada workers had to make some concessions. The legislation includes an amendment that grants lawmakers and the governor the final say over things like pay raises, regardless of what the workers negotiate. Compromises like this are common for public-sector unions. Still, labor leaders say that even having a seat at the table will be a huge step forward, and they will push for improvements to the law in the years ahead, if necessary.

Workers saw similar success this year in Delaware, where Democratic Gov. John Carney signed a bill in June granting collective bargaining rights to more than 2,000 state employees.

Since signing the law, state workers in Delaware have already begun to organize new unions. In late July, 340 workers at the Delaware Department of Motor Vehicles voted to form a union for the first time. They are joining Laborers’ International Union of North America Local 1029. Additionally, according to Michael Begatto, executive director of Council 81 AFSCME AFL-CIO in Delaware, dietary workers at the Delaware Veterans Home just voted to join AFSCME, and workers at the Office of the State Fire Marshal recently filed for an election.

Delaware Democrats have had a governing trifecta since 2009, but in the past, state workers faced “a reluctance” by some lawmakers and individuals in the executive office, Begatto said, noting that Gov. John Carney’s election in 2016 worked in their favor. “They balked at being able to go to the table as equals with workers,” he said. “This governor was more understanding; without him, this would not have happened.”

Unions in the state saw less of a decline in membership post-Janus than they had been expecting. “We were pleasantly surprised, as we were expecting a 20 to 25 percent reduction,” Begatto said. “Out of 7,000 members, we had only about 180 members opt-out.”

COLORADO WILL LIKELY be the next state to expand bargaining rights to state employees.

In this year’s legislative session, lawmakers in Colorado came close to achieving collective bargaining rights for its roughly 26,500 state employees, but the bill came to a halt because Democratic Gov. Jared Polis, who was elected last year, said he wanted more time to figure out how it would work in practice. In 2007, Colorado’s then-Democratic governor issued an executive order giving state workers the right to form a union, but not to collectively bargain. This bill would have codified and expanded that order.

Hilary Glasgow, executive director of Colorado Workers for Innovative and New Solutions, the state employee union, told The Intercept that she’s confident the bill will be passed in the next session.

“We know Governor Polis believes in collective bargaining, so where we’re at is him needing to understand all the ins and outs of what this means and how it can benefit not only the state and state employees, but also the citizens we serve in Colorado,” she said. “We’re going to be meeting regularly, as much as it takes, as often as it takes, to get to a place where we can introduce a bill on the first day of the next session that the governor and the union are behind.”

Glasgow and Polis released a joint statement at the end of April pledging to “enter into discussions to address outstanding issues surrounding House Bill 1273 and other issues affecting the state workforce and the people of Colorado that cannot be resolved in the few remaining days that exist in the legislative session.” The statement adds that “we are confident that we will successfully resolve these outstanding issues before the 2020 legislative session.”

Polis’s office declined to comment beyond the April statement.

Glasgow said collective bargaining rights are an important factor in addressing the state’s staffing crisis, which has escalated since 2009. A report published by the Economic Analysis and Research Network, a Colorado WINS partner, finds over the last decade that turnover among state employees increased by 73 percent. Colorado’s Department of Personnel reported last June that roughly one in every five positions in the state government was vacant. The high number of vacancies can place additional strain and responsibility on the workers who remain. A number of research studies support the idea that collective bargaining can help to reduce employee turnover.

“We’re seeing a steady decline in state workers and an alarming increase in vacancies,” Glasgow said. “We’re running roughly 10 percent behind the private sector on their total compensation plan, and what I think people don’t understand about state services is that a lot of them are highly dangerous behind-the-scenes work. There is expertise at the front-line level that can inform how they do their work in a way that makes it safer and better.”

The push for collective bargaining, Glasgow said, is rooted in a desire to make sure that this firsthand knowledge is taken seriously. “Workers need to have a venue to have those conversations so changes in their workplace can actually be implemented,” she said. “Right now, you’re at the benevolence of the governor and the cabinet as to whether they’ll hear you out.”

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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.”

Maine AFL-CIO Becomes First State Federation to Support a Green New Deal Bill

Originally published in In These Times on April 22, 2019.
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On Tuesday, Maine lawmakers will hold a hearing for “An Act to Establish a Green New Deal for Maine”—a new climate and jobs bill that has the notable support of Maine’s AFL-CIO, the first state labor federation to endorse a Green New Deal-themed piece of legislation. The bill calls for 80 percent renewable electricity consumption by 2040, solar power for public schools, the creation of a task force to study economic and job growth, and a commission to help facilitate a just transition to a low-carbon economy. Its backing from a coalition of over 160 labor unions offers an instructive lesson for other states looking to build union power to tackle a warming planet.

The bill is the brainchild of Chloe Maxmin, a 26-year-old state lawmaker elected in November, and the first Democrat to ever represent her district. Maxmin, who has been an environmental activist since she was 12 years old, and co-founded the Harvard fossil fuel divestment campaign while in college, said she knew if she was voted into office she would approach climate politics in a different way.

One of the criticisms of the national Green New Resolution sponsored by Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Senator Ed Markey (D-Mass.) is that it lacked a broad coalition of supporters when it was first introduced. But Ocasio-Cortez and Markey’s political strategy, they’ve explained, is to use the aspirational framework as an organizing tool over the next two years, to bring more key partners on board.

Maxmin, by contrast, sought to bring allies into her coalition prior to going public with the legislation, and Maine labor and environmental groups did not have a deep history of working together before. “I’ve been an organizer for a long time, and to build power and to really create something inclusive I knew it had to be inclusive from the beginning,” she told In These Times. “The traditional strategies that we’ve used around climate and climate policy just have not really gotten us very far.”

Maine has some unique characteristics: It is the most rural state in the nation, the whitest (roughly ­tied with Vermont), and the oldest. It’s also, as of 2019, one of just 14 states where Democrats control all three branches of state government.

While she knows her bill will be associated with the federal resolution, Maxmin stresses that hers should be understood as targeted legislation, specifically tailored to her state’s needs. “Of course, there are national parallels with not only the name but also echoing the themes of economic justice and opportunity, but it’s a very Maine-specific bill, and not meant to cover every component of the climate crisis,” she said.

Matt Schlobohm, the executive director of the Maine AFL-CIO, praised Maxmin for her deliberate efforts to “create a policy that was ambitious, aspirational and do-able” for working-class people. Maine’s labor community, which has about 12 percent union density, has not historically focused on climate issues or climate justice. Schlobohm thinks this legislation is a real chance for unions “to build trust and develop their analysis and capacity” in a meaningful way.

The bill sets less ambitious targets than the national Green New Deal resolution, which, among other things, calls for 100 percent renewable energy in 10 years, and includes language around reducing emissions from transportation and agricultural sectors. While the Maine Sierra Club supports the legislation, Maxmin acknowledged that some environmental activists have criticized her bill for not going far enough.

“Our approach was targeted legislation focused on economic and job growth in Maine,” she said, pointing to the solar projects for schools, and the jobs-focused task force which would report on its findings by next January. Like the state’s opioid task force which has paved the way to new state policies, Maxmin said she expects to be able to introduce more specific job legislation generated by the task force’s research next year. “There are other [environmental] bills going through the State House around transportation and agriculture,” she said. “This [bill] is for workers, low-income Mainers, and economic growth in Maine.”

Haley Maurice, a junior at Bowdoin College involved in the Bowdoin Climate Action group and a student leader with the national Sunrise Movement, has been involved in discussions with Rep. Maxmin to shape the bill. (Sunrise also endorsed Maxmin’s bid for office.)

“We started meeting in early February, and [Rep. Maxmin] was just really forward in saying we need young people involved,” she said. “I’ve been very impressed by her adamant belief in the democratic nature of the bill and in making sure that everyone who is affected by this is considered and at the table.”

Maurice said that while “other climate bills proposed in the Maine legislature have very ambitious timelines,” this is the first bill she believes really prioritizes how the energy transition will take place, and constitutes “a very strong starting point” for Maine. The legislation outlines requirements for a commission to study and track progress towards a low-carbon economy, particularly for those most adversely impacted: people from demographic groups that have been historically affected, and people who are low-income and cannot participate in energy efficiency programs.

Moreover, Maurice doesn’t think a state bill on a less ambitious timeline is at odds with the work that she and her Sunrise colleagues are pushing for on the national level. If anything, Maurice said, it just reinforces why the federal government needs to also be involved in the process.

“When you say we need 100 percent renewable energy by 2030, and we need a faster timeline, you need to think about the burden that places on Mainers here,” she said. “And if state bills have a slower timeline than what science is saying we need, I don’t think that is necessarily contradictory to our values. States need to push forward in the ways we can now while ensuring these transitions are happening in an equitable way, and we need a federal Green New Deal to bolster the work of the states.”

The Maine AFL-CIO’s support for the bill is an important milestone, as labor remains devided on the Green New Deal nationally. While the AFL-CIO’s Energy Committee responded critically to the Green New Deal resolution, unhappy with both some of its specific language and its lack of specifics, other labor organizations have started to mobilize in support. In late March the Los Angeles County Federation of Labor approved a resolution in support of “a Green New Deal or similar effort” to address climate change and economic inequality. In mid-April, Sara Nelson, the international president of the Association of Flight Attendants, which represents 50,000 flight attendants across 20 airlines, wrote an op-ed in in support of the Green New Deal, and the general urgency of tackling climate change.

Schlobohm said if he were to give advice to environmental leaders about how to organize effectively with labor, he’d encourage them to make deliberate efforts to understand unions, and engage them in a good-faith process. “And I think just the basic organizing 101 of showing up for each other,” he said. “There’s a lot of strikes and picket lines these days. Do environmental organizations show up at teacher strikes and grocery worker strikes? The same question should be asked of unions, but I think there’s just opportunity to build solidarity in this moment.”

For his labor allies, Schlobohm says the energy transition is going to happen, so it can either happen “with us or to us” and “one option is far superior than the other.”

Ultimately Schlobohm feels optimistic about the future of climate-labor organizing, says there are lots of opportunities for “win-wins”—and points to the recent organizing done by climate and labor groups in New York.

“There are renewable energy policies moving in every state in the country,” he said. “And every single one of those policy frameworks has the opportunity and levers for job quality and labor rights standards.”

 

Supreme Court’s Janus Decision Opens A “Pandora’s Box” For Public-Sector Unions

Originally published in The Intercept on June 28, 2018.
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Six years after Supreme Court Justice Samuel Alito first signaled his interest in striking down agency fees on First Amendment grounds, he authored a crushing blow to public-sector unions in a giddy 5-4 opinion issued Wednesday.

Janus v. AFSCME resolved whether agency fees, also known as “fair-share fees,” can be collected from public-sector employees who do not wish to be members of a union. Under the law, a public-sector union has to represent all workers in a workplace, irrespective of whether they opt to be union members. Charging agency fees has historically enabled unions to avoid the free rider-problem — without them, employees could enjoy the benefits of collective bargaining without paying the dues required to support union activities.

This week, the Supreme Court affirmed that no agency fee or any other form of payment can be deducted from an employee, “nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” The decision has immediate ramifications for the nearly 7 million state and local government workers represented by a union, of which 58 percent are women and 33 percent are African-American, Asian-American, Pacific Islander, and Latino. There are 17.3 million public-sector workers across the nation.

For more than 40 years, the Supreme Court has held that there’s a constitutional difference between a union’s political activities and its collective bargaining work. Compelling workers to fund the former would infringe on their freedom of speech, the court ruled in 1977 in a unanimous decision known as Abood v. Detroit Board of Education. But, the justices determined in Abood, requiring agency fees to support collective bargaining work was constitutional. Now the court has taken a knife to that distinction.

Many expected this outcome two years ago, when the court heard Friedrichs v. California Teachers Associationa case in which 10 public school teachers challenged the constitutionality of their mandatory agency fees on First Amendment grounds. While the 9th Circuit Court of Appeals disagreed with the teachers’ position, the Supreme Court seemed inclined to side with the challengers. But when Justice Antonin Scalia unexpectedly died in February of 2016, the court ended up issuing a 4-4 decision, preserving the 9th Circuit’s ruling. On Wednesday, the conservative members of the court got a second bite at the apple.

Writing for the majority, Alito was extremely dismissive of AFSCME’s argument that labor organizations will be less effective if agency fees are struck down. To support its case, Alito pointed to the 28 states that currently have laws on the books prohibiting agency fees as proof that those fees are not essential to avoid conflict between competing labor advocacy groups — something both U.S. employers and American labor law discourage.  Even without agency fees, Alito argues, workers in 28 states enjoy exclusive representation.

“Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that ‘labor peace’ can readily be achieved through less restrictive means than the assessment of agency fees,” the majority opinion reads.

When it comes to the free-rider problem, the court was similarly dismissive, citing the arguments raised by unions as “insufficient to overcome First Amendment objections” and not representing a compelling state interest to begin with.

In the dissent, authored by Justice Elena Kagan and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, Kagan writes that the majority “fails to reckon with how economically rational actors behave.” She argues that the majority ignores the basic fact that public-sector unions must represent all workers in a workplace, in contrast to private groups that can choose to represent only those who actively opt-in. Kagan also notes that the “Court today wreaks havoc on entrenched legislative and contractual arrangements,” rendering thousands of city, county, and state contracts across the country illegitimate. In other words, previously existing collective bargaining agreements in the public sector will now need to be re-negotiated, many of them all at once. New York City, for example, currently has agency fees in 144 contracts with 97 different public-sector unions. “[The majority dismantles these agreements] with no real clue of what will happen next — of how its action will alter public-sector labor relations,” the dissent states. “It does so even though the government services affected — policing, firefighting, teaching, transportation, sanitation (and more) — affect the quality of life of tens of millions of Americans.”

Conservatives immediately cheered the decision.

“The Supreme Court has freed millions of American workers from manipulation by union bosses that misrepresent their interests,” said Tim Huelskamp, president and CEO of the right-wing Heartland Institute, in a statement. “On the heels of this decision, every state should move quickly to certify that no American worker is ever compelled to give their hard-earned money to support self-serving union bosses.”

The plaintiffs in Janus and the cases that helped lay the legal foundation for it were supported by a web of conservative legal advocacy groups and right-wing foundations, including the Center for Individual Rights and the National Right to Work Legal Defense Foundation.

In a statement released after the Janus decision, Lee Saunders, president of AFSCME, declared that “despite this unprecedented and nefarious attack” the “American labor movement lives on, and we’re going to be there every day, fighting hard for all working people, our freedoms and for our country.”

Randi Weingarten, president of the American Federation of Teachers, echoed the dissenting judges, calling the Janus decision “a warping and weaponing of the First Amendment, absent any evidence or reason, to hurt working people.”

While unions are resolving publicly to fight back, they have also begun to prepare for the worst. The National Education Association, for example, which is the nation’s largest public-sector union, is forecasting a loss of 307,000 members over the next two years, and is planning to reduce its expenditures by $50 million during that period. There are currently 3 million members in the NEA.

Progressive economists say that Americans should expect to see economic inequality increase as public-sector unions adjust to a post-Janus world. According to the left-leaning Economic Policy Institute, “[a]s union membership has fallen over the last few decades, the share of income going to the top 10 percent has steadily increased.” When union membership peaked at 33.4 percent in 1945, the share of income going to the top 10 percent was 32.6 percent. By 2011, when union membership was down to 11.1 percent, the share of income going to the top 10 percent reached 48 percent. The gap is even more stark when it comes to wealth: In 2017, the top 1 percent of American households owned 40 percent of the nation’s wealth, a higher share than at any point since 1962. The top 1 percent owns more wealth than the bottom 90 percent combined. EPI attributes these trends to the lack of bargaining power that non-union workers have to negotiate their wages, among other factors that have made wealth distribution more unequal.

The Janus decision, though long expected, begets a new period of uncertainty in American labor relations. As The Intercept previously reportedsome labor activists, like those in the International Union of Operating Engineers, argue that Janus may have some unintended consequences that empower unions. If, as per Janus, collective bargaining is speech, then it is subject to powerful First Amendment protections. The majority may have inadvertently opened up the floodgates for countless new union-led lawsuits against governments that try to restrict their speech, by, for example, limiting the scope of their contract negotiations to predefined topics. Dismantling Abood, they say, could open “a tremendous Pandora’s box.”

Apprenticeships, A Favorite of Trump Administration, Carry Major Potential for Foster Youth

Originally published in The Chronicle of Social Change and InvestigateWest on June 20, 2018.
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This year Washington became the first state in the nation to pass legislation specifically designed to help foster youth access apprenticeship opportunities, which offer a steady path to full-time employment in a highly skilled trade.

Research shows that foster youth are likely to earn even less than other low-income youth living around them. Bill sponsor Sen. Kevin Ranker, D-Orcas Island, declared his intent to expand opportunities for children facing “immense obstacles or lack the support of their families.”

The legislation, SB 6274, offers financial assistance to foster youth, former foster youth and homeless youth for up to six years or until the person turns 26. It lowers the eligibility age from 16 to 13 and is expected to nearly double the number of eligible students.

Washington’s new law comes on the heels of President Donald Trump signing an executive order in June 2017 to increase the number of apprenticeships in the United States. The president called for doubling annual funding to $200 million, an expansion that would be paid for by reducing support for other job training programs deemed ineffective.

“Federally funded education and workforce development programs that do not work must be improved or eliminated so that taxpayer dollars can be channeled to more effective uses,” according to Trump’s executive order.

The order, noting that 350,000 manufacturing jobs were open, told the Labor Department to draw up regulations promoting apprenticeship programs by unions, trade and industry groups, and for-profit and nonprofit companies. It also sets up a task force to advise the president and calls for recognition for employers with good apprenticeship programs.

The order does not specifically mention the need to involve foster youth in apprenticeships, although it does seek to promote them for high school students, Job Corps participants, prisoners and those who were previously in prison, veterans and members of the armed forces.

While the president’s directive set no targets for exactly how many new apprenticeships there should be, labor experts from both sides of the aisle applauded the “earn-and-learn” expansion as needed and long overdue.

Apprenticeship programs begin with a mix of on-the-job training and class instruction, during which time the apprentice earns a wage. Industries where apprenticeships are common include information technology, construction and carpentry, plumbing, and various health professions. The executive order seeks to promote apprenticeships in “critical industry sectors,” such as manufacturing, construction, cybersecurity and health care.

Over the course of an apprenticeship, which can last several years, participants gradually take on more complex parts of a trade, and eventually receive a certificate of completion.

Supporters point to studies that suggest individuals who complete apprenticeships earn a starting wage of more than $60,000 per year, and that nearly 90 percent of participants lock down employment when their apprenticeship ends. With millions of job vacancies across the country, and a national survey of CEOs reporting that most executives struggle to find qualified workers, the potential of apprenticeships offers some a rare glimmer of hope.

Foster youth represent one population in particular that could really stand to benefit from these new economic opportunities. Some 23,000 young men and women turn 18 or 21 and “age out” of the foster care system every year. The statistics are grim. According to the National Foster Youth Initiative, foster youth have a less than 3 percent chance of earning a college degree, and only half who age out of the system will have some form of gainful employment by age 24.

But how can foster youth take advantage of expanded apprenticeships? What could help make such opportunities more accessible to them?

According to Mike Pergamit, a labor economist with The Urban Institute whose research focuses on vulnerable youth, experts “still don’t really know what works” when it comes to designing effective youth employment programs. The picture looks even worse when it comes to foster youth. Pergamit says “there haven’t really been many evaluations” of employment programs targeting youth in foster care.

That said, Pergamit maintains there’s reason to think apprenticeships could be particularly beneficial to foster youth since they they’re typically longer-length opportunities that come with high levels of mentorship. Stability and support, he says, can make all the difference.

One challenge for policymakers who might want to help target apprenticeships is that many foster youth have no desire to self-identify as someone with ties to the foster care system. One strategy for dealing with this stigma issue is to pursue strong data partnerships with government agencies.

In Washington, for example, the Washington Student Achievement Council has partnered with the state Department of Social and Health Services (DSHS) to better target resources and information toward foster youth looking to go to college or join the workforce.

“In secure ways DSHS sends us who is in foster care at the time at which they can maybe access the services so we know who they are,” said Becky Thompson, the director of student financial assistance at the Washington Student Achievement Council. “But it also requires a lot of outreach, so we provide training to social workers about resources that are available, since sometimes they can act as more of a trusted adviser.”

Some states also have foster care liaisons working in their public school districts; these liaisons can work with program providers to help students learn about what’s available and how to take advantage of supports.

Other barriers that could impede foster youth from accessing apprenticeship opportunities include a lack of stable housing; a lack of reliable transportation to get to work; and lack of driver’s licenses, which can be a prerequisite for even getting hired.

Krishna Richardson-Daniels, the founding director of A Bridge Forward, a nonprofit in Renton, Washington, focused on youth aging out of the foster care system, says her group works to provide young people with subsidized ORCA cards so they can get to work and school. But some foster youth live in areas that lack high-quality public transit.

Obtaining a driver’s license, Richardson-Daniels says, can be one of the biggest and most poorly understood barriers for foster youth.

“Driver’s education is now privatized and not offered in the public school system, and those programs can cost anywhere from $300 to 500,” she said, noting there really aren’t many foster families willing to support those costs and few nonprofit groups have the bandwidth to take it on.

“Seattle is the fastest-growing city, we have some of the largest construction projects going on, but you cannot actually work in construction without having a driver’s license,” she explained. Construction is a field with a long history of providing apprenticeship opportunities.
A coalition of foster youth advocates has launched a national campaign called “Going Places” to try to tackle this driver’s license problem.

Aside from these barriers, given that apprenticeships are broadly understood to be something of a rigorous pre-employment opportunity, many people fail to realize how much work typically goes into preparing young people for apprenticeships. So-called “pre-apprenticeship” programs have become a popular strategy; these are short-term opportunities designed to help acclimate specific groups so they can enter and thrive in their apprenticeship program later on.

One promising pre-apprenticeship model designed to help disadvantaged youth (including but not exclusively foster youth) was developed by the District 1199C Training & Upgrading Fund in Philadelphia. The pre-apprenticeship program runs for six weeks and includes an opportunity to ensure all participants secure driver’s licenses.

Advocates say thoughtful, concerted outreach will be necessary to help older foster youth access apprenticeships, perhaps even more so than other disadvantaged populations, given the chaos they face if they age out of the system at 18 or 21. Experts suggest beginning targeted outreach in high school, several years before foster youth are set to age out.

“This is a unique population that might have some barriers that need additional support, and so having some very early outreach happening with high school counseling can be very effective,” Thompson said.

Another barrier can be whether the employers themselves are prepared to work with foster youth. One strategy is for policymakers to encourage employers to get trained in the so-called Trauma Informed Approach, a professional development model which can help bosses better understand what their foster youth apprentices are dealing with, and how best to support them.

“Trauma is a big difference between foster youth and other disadvantaged youth,” said economist Pergamit. “Many (foster) youth have had various trauma, growing up in tough neighborhoods and witnessing all kinds of things, but foster youth by definition were the victim of some sort of abuse or neglect, and once they enter the foster system they’ve had even more disruption and turbulence beyond that.”

Representatives from the Labor Department did not return multiple requests for comment.

Edwin Dirth contributed to this report.

The Teachers’ Movement Goes Virtual

Originally published in The Atlantic on April 11, 2018.
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When West Virginia teachers initiated a nine-day labor strike this past winter, they secured national attention and a 5 percent pay raise. Oklahoma and Kentucky educators followed suit, with Arizona teachers threatening to do the same. Amid all this organizing was another strike threat, not previously reported, last week in California: between teachers in online classrooms and the organization that employs them.

Students enrolled in virtual schools (sometimes called “cyber schools” or “virtual academies”) take their classes online. It’s a small phenomenon, representing less than 1 percent of students, but a fast-growing one. According to the National Education Policy Center, about 279,000 students enrolled in virtual schools in 2016, up from roughly 200,000 in 2012. Education experts have been concerned by the growth of virtual K-12 education, especially virtual charter schools, which are publicly funded and privately managed. U.S. Education Secretary Betsy DeVos has touted virtual charter schooling as a particularly ripe area for expansion, emphasizing its flexibility and potential to offer courses that a student’s traditional school might not have. But, in practice, virtual schools, especially charters, have tended to deliver significantly lower academic results than brick-and-mortar ones. “Academic benefits from online charter schools are currently the exception rather than the rule,” wrote the authors of a 2015 report from the Stanford Center for Research on Education Outcomes.

While some teachers gravitate to virtual charters because of the flexibility it offers, salaries can be low, and class sizes are, on average, much larger than in brick-and-mortar charter schools or traditional public schools. (Though virtual teachers don’t have to manage physical classrooms, large class sizes still equate to a heavier workload.) The overwhelming majority of virtual teachers are not unionized. But in 2014, educators at California Virtual Academies (CAVA), California’s largest network of online charter schools with more than 10,000 students and about 450 teachers, decided to create a union, California Virtual Educators United, under the umbrella of the California Teachers Association. After two years of legal battles, CAVA recognized the teachers’ union, and starting in September 2016, the parties began negotiating their first contract over salaries, class sizes, and other issues.

The negotiations represent an important test case of how educators might wield power in a future where online education becomes even more common. According to Brianna Carroll, a high-school social-science teacher in Livermore, California, and president of the teachers’ union, bargaining had been slow-going, especially in recent weeks, when negotiators hit an impasse over class size. Educators said the number of students under their supervision had spiraled out of control, with some teachers stuck overseeing virtual classrooms exceeding forty students, and demanded class sizes be capped. “Either you have teachers who are burning themselves out because they’re trying to meet the needs of everyone, or you aren’t meeting the needs of everyone,” Carroll told me. “It’s really one or the other.”

April Warren, CAVA’s head of schools, declined to comment on many details of the negotiations. “CAVA is dedicated to working together with CVEU to reach a fair and equitable settlement so that we may continue to build upon CAVA’s unique and special achievements in support of the students and families across California,” she told me in an email.

While virtual schools across the country face some of the same struggles roiling traditional public schools, namely decreased state funding per pupil even after local economies have rebounded since the recession, virtual teachers also have to reckon with a newer threat: the involvement of for-profit companies that seek to deliver profits to their investors. CAVA, for instance, is a nonprofit network, but its operations are deeply intertwined with K12 Inc., a publicly traded company based in Virginia. K12, founded in 2000 by William Bennett, the education secretary under Ronald Reagan, and Ronald Packard, a former Goldman Sachs banker, is the nation’s largest supplier of management services and curriculum for virtual charters. The company, according to Education Week, has built a powerful lobbying operation in more than 20 states.

While CAVA describes its schools as independent, Jessica Calefati of San Jose’s The Mercury News, who investigated the arrangement back in 2016, found tax records showing that K12 employees themselves had established more than a dozen online schools in California. CAVA contracts with K12 for all sorts of services: The company provides the schools’ curricula, oversees their budgets, trains teachers, offers technical assistance, and even handles media communications. Calefati wrote, “Accountants and financial analysts interviewed by this newspaper, including several who specialize in school finance, say they’ve never seen anything quite like the arrangement between K12 and the public online academies.” (A CAVA official called The Mercury News investigation a “gross mischaracterization” of the organization’s work.)

CAVA teachers say they organized a union in part to push back on K12’s corporate influence over their schools. “For so long it’s been focused on how to use this charter-school concept to turn a dollar, rather than how to use online tools to support more students,” said Carroll, the union president. “We’re really using the union to push CAVA to have different goals.”

The virtual charter network might benefit from some new goals. In 2016, then-state Attorney General Kamala Harris alleged that K12 and CAVA had used false advertising and inflated their student-attendance numbers to collect extra state funds. Harris also alleged that K12 had trapped the network in debt by saddling cava with an unfair contract. CAVA and K12 agreed that year to settle with the state for $168.5 million. K12 emphasized it had admitted no wrongdoing, and said the attorney general “grossly mischaracterized the value of the settlement just as it did with regard to the issues it investigated.” In an email to The Atlantic, the K12 spokesperson Michael Kraft disputed the AG’s characterization of the schools as indebted. Also in 2016, The Mercury News reported that fewer than half of  CAVA’s high-schoolers earned diplomas, and almost none were qualified to attend the state’s public universities. (K12 disputes this, noting the state does not always have reliable data for nontraditional schools with higher student mobility rates.) CAVA was also hit with a nearly $2 million fine in 2017 after California’s Department of Education found continued issues with attendance reporting and other practices. (CAVA disputed this, releasing a statement that CAVA schools “demonstrated they were consistently operating in full compliance with all state laws and regulations” and planned to appeal the financial penalty.)

Last fall, faced with a stalemate with CAVA over salaries, workday length, and class size, the teachers authorized a strike: More than 90 percent of the 450-member union voted to back their bargaining team if it called for walking off the job. Shortly after that, CAVA administrators tentatively agreed to some new concessions, according to copies of signed agreements provided by the union: a pay raise, a shorter work year, and fewer employment duties, among others.

Still, the fight around class size remained unresolved. CAVA teachers argued that class-size limits would improve academic quality. Carroll said the charter network maintained during negotiations that caps would hinder their needed flexibility. (CAVA declined to comment on its position on class sizes.) When they were still unable to reach an agreement, following a two-day fact-finding mediation last week, union leaders announced they were preparing for a first-of-its-kind strike. A virtual-charter strike would have meant that all online classes would be canceled, and teachers would meet in person to picket at locations such as the CAVA offices in Simi Valley. The strike was to be held in late April or early May.

But the day after the teachers’ strike announcement, April Warren, CAVA’s head of schools, proposed a compromise resolution: Classrooms could be capped at about 30 students, according to a copy of the signed agreement provided by the union, and if a classroom were to exceed that threshold, the teacher would be compensated accordingly. The teachers agreed. “I think the strike played a huge role in helping us resolve this, because that’s what CAVA was constantly saying—‘well, we don’t want a strike,’” Carroll said. Warren declined to comment on the strike threat, but on Monday, she confirmed the parties had reached a tentative agreement and were “working on a timeline for full ratification.” A spokesman for K12 declined to comment.

Carroll says teachers at other virtual charter networks have been reaching out to her, intrigued by her and her colleagues’ union work. While the West Virginia and Oklahoma teacher strikes demonstrate how educators at traditional public schools can still assert formidable collective power, just 11 percent of charters in the United States are currently unionized, and among virtual charters, that number stands at 9 percent. There are several reasons for this: Most charter-school backers and funders take a relatively anti-union stance, asserting that unions will impede a school’s flexibility, and therefore its ability to deliver the best education possible for students. Unions have also been slow to organize charter-school teachers, long viewing them as scabs who threaten their livelihoods. Labor groups have softened their stance towards charter teachers in recent years, but tensions remain as unions continue to work politically to halt charter-school growth.

A successful contract negotiation for cava teachers, though, could help ignite similar efforts elsewhere. The anything-goes approach to virtual education has made it alluring to operators trying to cut costs or make a buck. But if their workers have any say in the matter, online charters’ freewheeling days may be numbered. That would be good not just for educators but for the students entrusted to them.

Radio show on Janus v. AFCSME and striking teachers

I was kindly invited onto a California radio show, Beneath the Surface, yesterday to talk about recent happenings in the world of labor — namely the Supreme Court case challenging public sector union agency fees and the recent West Virginia teacher strike  and potential teacher strike in Oklahoma.

I was joined by Shaun Richman, a regular source of inspiration for my labor stories.

Can listen here: http://archive.kpfk.org/index.php?shokey=bts_friday

How Labor Is Thinking Ahead to a Post-Trump World

Originally published in The Intercept on January 21, 2018.
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The American labor movement, over the past four decades, has had two golden opportunities to shift the balance of power between workers and bosses — first in 1978, with unified Democratic control of Washington, and again in 2009. Both times, the unions came close and fell short, leading, in no small part, to the precarious situation labor finds itself in today.

Just over 10 percent of workers are unionized, down from 35 percent in the mid 1950s. Potentially, though, a wave of Democratic victories in 2018 and 2020 could give labor groups one last chance to turn things around. With an eye toward that moment, labor’s leading strategists are coming together to build a program that avoids the mistakes of the last two rounds.

Strike One: 1978

The National Labor Relations Act — a foundational law that guarantees the rights of private sector employees to unionize — was passed in 1935, and more than 40 years later, President Jimmy Carter, urged on by the AFL-CIO, came out in support of federal labor law reform. “The purpose of this [proposed] legislation is to make the laws which govern labor-management relations work more efficiently, quickly, and equitably and to ensure that our labor laws fulfill the promise made to employees and employers,” Carter said at the time.

The law would have addressed a number of issues that still remain on labor’s agenda today, such as faster union elections and tougher penalties for employers who refuse to bargain and violate labor law. “We didn’t try for revolutionary things; we pushed for things we thought we could get broad support for,” said Ray Marshall, who had served as labor secretary in the Carter administration. But with 59 votes in the Senate, a 44-year-old freshman Republican from Utah, Orrin Hatch, had filibustered the law, and it failed.

One of the revolutionary things the administration did not try for was the Humphrey-Hawkins Full Employment bill, which guaranteed a federal job to anybody who wanted one. It represented the height of labor’s aspirations coming out of the Great Society and what liberals (at least the ones who had not turned toward the free market as the answer) saw as one of the final legs of the stool. Carter was having none of it, and a much-weakened version went through instead. Anger at Carter’s inability to deliver for labor led many unions to back the primary challenge launched by Sen. Ted Kennedy, D-Mass. Despite Carter’s reputation as a progressive and the good work he has done since leaving office, his presidency is not remembered fondly in many union households.

Strike Two: 2009

The labor movement had another rare opportunity in 2009. Barack Obama had won the presidency, and Democrats not only took over Congress, but also seized an unexpected 60-vote, filibuster-proof majority in the Senate. Labor wasted no time vocalizing its demand for the passage of the Employer Free Choice Act, a law known as EFCA that would have given workers the right to join a union as soon as a majority of employees signed cards in support of the move. The legislation also would have stiffened penalties on employers who violated labor laws and forced recalcitrant employers to negotiate contracts with new unions.

The unifying idea behind these three reforms was that policies were needed to make it easier for workers to form unions and bargain contracts once they did. Research at the time showed a steep rise in the illegal firings of pro-union workers in the 2000s, and the National Labor Relations Board election process — to certify or decertify a union as a unit’s bargaining representative — was widely seen as tilted toward anti-union employers. Even when workers did vote for union representation through NLRB elections, many employers then refused to bargain, with only 38 percent of unions securing a contract within a year of certification.

Unions started discussions around EFCA in 2003, when Republicans controlled Congress and the White House. In 2007, Kennedy and Reps. George Miller, D-Calif., and Peter King, R-N.Y., introduced the bill, which passed in the House 241-185 — including 13 votes from Republicans. Though EFCA also had majority support in the Senate, it was blocked by a Republican filibuster.

So when Democrats took control in 2008, with a filibuster-proof majority to boot, the prospect of EFCA’s passage was tantalizing.

In 2009, progressives believed the odds were in their favor — all it would take was getting the votes of all 59 Democrats and independents, and hanging on to Arlen Specter, the Republican senator from Pennsylvania who co-sponsored the 2007 bill. Unions predicted they could add at least 5 million members to their rolls in just a few years if EFCA were to pass.

The business community hated EFCA, correctly recognizing that it would have shifted power relations between workers and employers. “This will be Armageddon,” the vice president for labor policy at the Chamber of Commerce complained. Before his inauguration, Obama told the Washington Post he knew the business community saw EFCA as “the devil incarnate.”

But the politics ended up being far more treacherous than labor anticipated — or perhaps more than the movement allowed itself to see.

“We never had 60 votes for EFCA, we just didn’t,” said Sharon Block, who worked as senior labor counsel for Kennedy on the Senate committee on Health, Education Labor, and Pensions in 2008. “We didn’t have all the Dems, even though we were closer than we had been before.”

Though EFCA tackled several areas, the provision that remains most memorable is “card check,” which would have allowed workers to form a union once a majority signed pro-union cards. (Labor organizers prefer the term “majority sign-up,” but card check is what stuck.)

The proposal was deeply controversial, in part because unions found it tough to explain why they were discouraging NLRB elections, in which workers could vote by secret ballot. Suddenly, Democrats and unions found themselves on the defensive, pushing back against arguments that they were anti-democratic. EFCA opponents argued they were merely trying to protect workers from coercive employee pressure — a talking point that resonated even as they expressed no similar concern regarding the similar, well-documented pressure coming from employers.

“There was a lot of not terribly sexy, but good reforms in EFCA to shape public opinion along the lines of fairness and stopping intimidation, but instead the conversation was about fattening the coffers of union bosses through anti-democratic methods, that unions don’t want you to have the right to vote,” recalled Louis Nayman, who worked then as a director of organization at the American Federation of Teachers. “Opponents even got George McGovern, the darling of the left, to do a 60-second anti-EFCA ad paid for by [anti-union activist] Rick Berman.”

Labor leaders still disagree about the reasons for EFCA’s failure.

Some say it’s the fault of moderate Democrats — like former Sen. Blanche Lincoln from Arkansas — who said she’d only vote for the bill if the card check provision was removed. (Lincoln lost her re-election bid to a Republican in 2010.)

Others blame Obama for not prioritizing the legislation, instead putting his energies and political capital behind health care reform.

And some say it had to do with a weak ground game from the labor movement and progressives, who never really mobilized the public enough to hold Congress and the president accountable. “There was this ‘Hey we just got you elected and now you owe us’ way of thinking about the world,” said Ken Jacobs, chair of the Labor Center at the University of California, Berkeley. “Obama at some point said, ‘You’ll have to make me do it,’ and that was not taken seriously to the degree it needed to be. To do something that will significantly shift power relations in the U.S. cannot be done quietly as a negotiated deal, it cannot happen without a loud clamor for it. It needs to be big enough and presented in ways people can understand.”

Block, the former lawyer to Kennedy in the Senate, doesn’t think Obama’s lackluster advocacy really made much of a difference. In fact, she said, some version of EFCA probably would have gotten through, but the final blow came when Senate Democrats lost 60 votes following Kennedy’s death. When the Massachusetts Democrat died of brain cancer in August 2009, he was succeeded by Republican Sen. Scott Brown, and the filibuster majority was no more, and EFCA never came up for a vote again.

The cost of losing EFCA was devastating, said Block. “We had put all of our eggs in that legislative basket and we didn’t win. And we really haven’t seen fundamental labor law reform since then.”

Carrie Gleason, who directs the Fair Workweek Initiative at the Center for Popular Democracy, said EFCA would have generated momentum to do even more, but after it failed, “the labor movement lost steam on a broader agenda.”

Though it was unsuccessful, Nayman, who is now retired, thinks the movement to pass EFCA alarmed and energized mainstream Republicans, who were suddenly fearful that unions might dramatically boost their membership, thereby increasing Democratic power throughout the United States.

“Right-wing funders capitalized on that and said, ‘Let’s never be put in this position again, let’s go after their money,’” said Nayman, who draws links between EFCA’s failure and Wisconsin Gov. Scott Walker’s subsequent rise to power, which came in part as a result of his focus on weakening public sector unions.  “When you aim to shoot the king, you better kill him, and with EFCA that didn’t happen,” Nayman said. “Every action has a reaction.”

“During the EFCA fight, I think there was a lot more energy on the business side, it felt like there were more people being brought in to canvass against it than there was union rank-and-file being brought to pressure Congress,” reflected Lawrence Mishel, who led the Economic Policy Institute, a pro-labor think tank in D.C., for decades until his retirement in December.

One consequence of failing to pass anything major on the federal level was a shift to state and local labor organizing — turning to city councils, legislatures, and ballot initiatives. The Fight for $15, for example, took off in 2012 and over the next five years, led to a wave of successful efforts to raise the minimum wage, pass fair scheduling bills, paid sick days, and paid family leave.

“A lot of us looked at the Fight for $15 in the beginning and thought they were out of their minds,” said Jacobs. “But they ended up changing the whole debate, in part by going out with clear, bold demands everyone could understand.”

But one result of all those local gains has been a push by Republicans in states to pass “preemption” laws, which prohibit local governments from passing laws on certain issues, effectively blocking cities from passing progressive legislation. “We’ve made tremendous gains, but with Republicans pushing for national preemption, everything is at risk if we don’t organize and build power in Congress,” said Gleason.

A Better Deal and Beyond

In 2017, a group of prominent congressional Democrats, including Senate Democratic Leader Charles Schumer and House Democratic Leader Nancy Pelosi, unveiled a package of labor reforms, under the banner “A Better Deal for American Workers.” The package includes ideas to strengthen the right to strike (by banning the permanent replacement of striking workers), push for mechanisms to ensure employers negotiate a first contract with unions (similar to what was proposed in EFCA), and ban so-called right-to-work laws, which have allowed workers to shirk paying fees to unions that represent them.

Mishel, the recently retired economist, called the Better Deal ideas “seriously bold” and Jacobs of UC Berkeley agreed, adding that the proposals seem to reflect “a much deeper understanding” among Democratic leadership and Democratic thinkers of what ultimately needs to be done. (Card check is notably not included in the list of Better Deal proposals.)

Also on the table is a bill called the Workplace Action for a Growing Economy Act, backed by the labor federation AFL-CIO. The WAGE Act would make it easier for workers to organize, stiffen penalties against employers who violate labor law, and give workers the right to file discrimination lawsuits if they’re punished for union activity.

At AFL-CIO’s convention in October, the union passed a resolution pledging to protect workers’ right to organize, heighten employer penalties, make negotiating first contracts easier, and protect immigrant workers from exploitation and retaliation.

Damon Silvers, director of policy and special counsel at AFL-CIO, told The Intercept that the group’s immediate strategy is to focus on those four planks and push for the WAGE Act, ultimately launching a longer-term conversation about what more fundamental change is needed.

The looming question is whether these ideas are enough to confront the challenges faced by working people in 2018. Most labor experts agree that if these proposals had passed back in 1978, when Hatch famously filibustered attempts at reform, economic inequality could look very different today. But what about now?

Larry Cohen, Our Revolution board chair and former president of the Communications Workers of America, said labor should aim higher, since no Republican would vote for any of the Better Deal ideas anyway. “If our frame is collective bargaining, how does that look in the rest of the world, and why do we come up short?” Cohen asked, noting that it’s much harder to bargain collectively in the United States compared to many other democratic countries. “Everyone lectures us about the global economy, and we need to lecture back,” he said.

In the meantime, labor is sliding backward. The Supreme Court will issue a decision later this year that could severely weaken public sector unions, and President Donald Trump’s National Labor Relations Board is doing its very best to overturn critical pro-worker decisions issued during the Obama era. And, because the basic structure of the National Labor Relations Act hasn’t changed much since it was first established in 1935, employers have had decades to develop new legal strategies to weaken the law; their strategies include forced arbitration and misclassifying workers as independent contractors.

A number of creative proposals have been floated recently — and might attract attention from progressive legislators looking for ways to stand out in a competitive 2020 primary.

Among these ideas include a push to end at-will firing, and a call for workers to demand their rights be treated as constitutional rights. “I think this frame is very helpful to talk about the core of what it means to have more of a say at your job,” said Gleason. “The right to free speech at work, the idea that your employer can’t just fire you because they don’t like you or because you spoke up about your beliefs. … I think people in America don’t really realize how powerless they are at their jobs until it’s too late.”

Other ideas include exploring so-called sectoral labor standards — where workers across entire industries, such as all finance workers or all retail workers, bargain collectively. Sectoral bargaining has been an important lever for workers in countries like France, Germany, and Brazil. Right now in the United States, workers collectively bargain with their individual employers, but sectoral bargaining would mean negotiations could take place industry-wide.

“If there’s anything we’ve learned from the Fight for $15 and a union is that the need for real transformative demands are important,” said Sarita Gupta, executive director of Jobs With Justice. “People want demands that are worth the risk.” Gupta’s group is exploring proposals like the idea of universal family care and “co-enforcement,” under which community-based organizations would partner with workers to help enforce progressive labor laws.

Jacobs said pushing for joint-employer liability, meaning pushing legislators to end corporations’ ability to shirk legal responsibility through franchising, also needs to be on the table. While the NLRB under Obama started to address this issue through a critical decision issued in 2015, the NLRB reversed the ruling last month, making it once again extremely difficult to hold corporations liable.

Nayman hopes to see a greater willingness among progressives to reach out to moderate Democrats on labor reform. “I would not start my conversation with Bernie Sanders or Sherrod Brown, I would start with the Blue Dogs, because you’re going to need them too,” he said. “Rather than treating moderates as enemies and sellouts, recognize that we’ll need them on board for this.”

“The lesson [from EFCA] is you don’t wait until the wave hits, you begin to work when times look tough,” added Bill Samuel, director of government affairs at AFL-CIO. “So we’ll begin drafting and introducing legislation, which we’ve done in terms of the WAGE Act, and we’re going to work on getting support from members and candidates.”

Unions should precondition endorsements for candidates on a commitment to support the WAGE Act, he added. “The lesson is get to work, regardless of the political environment you’re in, build support, awareness, and be ready.”

The New Fight For Labor Rights

Originally published in The New Republic on September 28, 2017.
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The American labor movement currently stands at one of its lowest points in history. Barely one-tenth of all workers belong to a union—down from more than one-third in the 1950s. Over the past half-century, the courts have gutted legal protections for striking workers, curtailed their ability to engage in political action, and granted employers broad “free speech” rights to frighten them out of unionizing. Under President Trump, workers are likely to be besieged by even more hostile attacks from Republicans and their corporate allies—including calls for a national “right to work” law that would strip unions of their ability to collect dues. If the labor movement hopes to survive in the twenty-first century, it will need a new strategy.

For more than 80 years, workers have primarily relied on protection from the National Labor Relations Act, the landmark measure passed under FDR that prohibits unfair labor practices and encourages collective bargaining by private-sector employers. But the law has been so watered down by unfriendly court decisions and legislative amendments that it offers little recourse for the labor movement going forward. Today, according to a new report by a leading think tank, workers would be better off if they adopted a strategy that turned to a different and more sacrosanct set of constitutional guarantees: the Bill of Rights.

According to Shaun Richman, a former organizing director for the American Federation of Teachers, workers should not just defend their rights as employees, but should also start championing their liberties as citizens. In a report for the Century Foundation, Richman argues that just as corporations have gone to court to claim broad constitutional protections, workers should assert their fundamental rights to free speech and equal protection under the law. “Unions have rarely if ever argued that these cases violated their own constitutional rights,” Richman says. “Rights-based rhetoric was kept out of their whole legal strategy.”

Consider several recent cases that unions argued—and lost—under the National Labor Relations Act. In 2011, workers at a Jimmy John’s sandwich franchise in Minneapolis launched a campaign to protest the company’s refusal to provide paid sick leave. In response, the company fired six workers involved in the protest. But when the union representing the employees, the Industrial Workers of the World, accused the company of violating the National Labor Relations Act, a federal appeals court ruled in July that the company had the right to fire its employees for engaging in “disloyal” conduct.

At the same time, Congress and the courts have sharply curtailed the ability of workers to go on strike, especially in solidarity with others. It is now illegal for truck drivers to refuse to make deliveries to stores where workers are on strike, or for cleaners to refuse to wash linens from hotels where workers are protesting. In 2006, Roger Toussaint, then the president of Local 100 of the Transport Workers Union, was sentenced to ten days in jail for leading a transit strike that crippled New York City. Employers, meanwhile, have retained the right to lock out workers who are engaged in collective bargaining, and to fire employees without just cause.

To Richman, cases like these underscore the benefit of a rights-based strategy. After all, punishing employees for speaking out against their boss—whether on a flyer, a T-shirt, or Twitter—would seem to violate their First Amendment right to free speech. Similarly, going on strike should fall under the constitutional right to free assembly, and union organizing embodies the right enshrined in the Thirteenth Amendment to be free from “involuntary servitude.” In effect, Richman argues, unions should go on offense in the courts—and brandish the Constitution as their most powerful weapon.

“After the election, it’s clear Democrats need to do something to win back workers,” Richman says. “But they don’t really know what to do. Why not push the courts to establish a right to strike? Or the right to be free from arbitrary terminations from your job?”

Some longtime observers of the labor movement are skeptical that unions will embrace Richman’s call to arms. “I’ve found that unions are very shortsighted,” says Bill Fletcher Jr., co-founder of the Center for Labor Renewal and a former education director of the AFL-CIO. “There’s a conservatism that exists in the labor movement—a sense that doing anything different might be too radical, or could be misperceived, or could lead to an uncertain outcome.”

Given the bleak state of affairs for workers, however, some argue the labor movement has little left to lose. “There’s no point thinking that if labor sticks with the status quo, they will survive,” says Erik Loomis, a labor historian at the University of Rhode Island. “The National Labor Relations Board under Obama was probably the best it’s been for labor since LBJ. But even that kind of incremental progress is just not enough when you’re at total war with the Republicans.”

 

When it comes to corporations and employers, the courts routinely adopt a rights-based position. Unlimited campaign contributions are protected as a form of free speech. Denying the right of unions to collect dues from all employees is defended as “the right to work.” Employers have the right to permanently replace striking workers, and to put economic pressure on other businesses to support their own economic interests. Richman points to cable television providers that have blacked out an entire channel rather than submit to a rate increase from the channel’s network—and have even urged viewers to call the network’s CEO to complain. “Why is the use of the secondary boycott legal when employed by media companies,” Richman writes in his report, “but illegal when exercised in solidarity by workers?”

Richman spells out a variety of rights-based cases that unions should take to court—where even conservative judges have proven to be receptive to constitutional arguments. Unions should argue that workers have a free-speech right to protest their employers. If they are locked out on the job, workers should assert their due process rights under the Fifth Amendment. And they should challenge right-to-work laws and the bans on solidarity boycotts and so-called “signal picketing”—such as protests in front of a company that mistreats its employees—as violations of their Fourteenth Amendment right to equal protection under the law. “Simply put,” Richman argues, “unions are hampered by rules that would never be applied to corporations, or to any other form of political activism.”

In addition to fighting in court, workers and their allies need to educate the public about workplace inequality and pressure Democratic lawmakers to block anti-labor judges. They also need to begin outlining a clear pro-worker agenda for whoever wins the Democratic nomination for president in 2020. The Obama era showed just how brief the window of opportunity can be for advancing labor rights. That’s why, even though the GOP currently controls all three branches of government, and the courts still tilt to the right on matters of labor law, unions and their supporters must wage a war on all fronts. “It would be horrible if people thought we could just pursue a long legal strategy and ultimately win in the courts,” says Stephen Lerner, a labor strategist and architect of the Justice for Janitors campaign. “It has to be part of a concerted strategy—winning both legally and legislatively.”

In a way, there’s no better time than now to implement a rights-based labor strategy. After all, Lerner points out, some of the greatest gains in labor history have come from workers organizing to fight illegal or unprotected conditions—whether it was farmworkers going on strike to protest low wages, or public school teachers mobilizing for collective bargaining rights at the state level. It’s not just Republicans holding back workers—it’s also the timidity of unions themselves. “There has to be a willingness to break the law as a way to highlight injustices,” Lerner says, “to show we can go on offense.”

 

Fining Teachers for Switching Schools

Originally published in The American Prospect on November 3, 2016.
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Last month, the Massachusetts Teachers Association reported on the story of Matthew Kowalski, a high school history and economics teacher who received a $6,087 bill over the summer from his former employer—a suburban charter school in Malden, Massachusetts. Kowalski had worked at the Mystic Valley Regional Charter School for seven years, but with three young children and another one on the way, he said he wanted to find a teaching job that would offer something more stable than at-will employment.

Mystic Valley now seeks to collect thousands of dollars in “liquidated damages” for Kowalski’s departure. Every spring, the charter school requires its employees to sign one-year contracts for the following school year, but since many new teaching positions don’t open up until May, June, and July, this puts teachers in a tough position if they want to consider looking for alternative jobs. Kowalski signed Mystic Valley’s 2016-2017 contract in April, got a job offer from a traditional public school in May, and gave the charter written and verbal notice by May 20. Mystic Valley then hired Kowalski’s replacement, whom Kowalski trained. Two months later, his $6,000 bill arrived. It didn’t take long for Kowalski to learn there were others who had faced a similar fate. MTA Today reported on another teacher who had worked at Mystic Valley for four years, who was billed $4,900 in “damages” for giving notice over the summer.

As MTA’s legal division worked to help the former Mystic Valley teacher fight these charges, Kowalski’s attorney stumbled upon something surprising: Mystic Valley employment contracts included non-compete provisions, prohibiting teachers from working in any public or private school in any of the six “sending districts” near the charter school. Though charters are often framed as a way to induce competition into American schools, non-compete agreements—which have grown increasingly common in the private sector—make clear that some charter employers don’t believe that schools should compete for teaching talent. Nor is it clear that the agreements are even legal, or enforceable.

Just how common contracts like these actually are remains a mystery, but they’re not just limited to Mystic Valley.In 2015, the Akron Beacon Journal found that Summit Academy Schools, the largest charter network in Ohio, sued nearly 50 former teachers in a three-year period for leaving for other jobs. Summit Academy schools have non-compete provisions in their employment contracts.

“Summit Academy’s legal team filed [lawsuits] against as many as eight [former teachers] at a time,” the Akron Beacon Journal reported. One such teacher was Joel Kovitch, who quit in 2013 to take a higher-paying position. He gave his notice one month into summer vacation, and thought there’d be plenty of time to replace him. He ended up paying Summit Academy $1,200 after growing tired of fighting the legal battle.

The American Prospect also reviewed an employment contract for a charter school within the Constellation Schools network, another Ohio charter chain with 17 campuses throughout the state. The contract requires teachers to work for one year, to have no expectation for employment beyond that, and to pay their school $2,000 in liquidated damages if they terminate their employment at any time before their contract expires. The Constellation contract says this is not a “penalty” for leaving, but an acknowledgment that the employer “has expended considerable time and effort recruiting and/or retaining and training you to ensure you are prepared for your position, and … that such a disruption to the educational process is difficult if not impossible to calculate.”

In other words, teachers can’t expect to stay more than one year, but if they leave before one year is over, then they will need to pay their school two grand. Constellation Schools did not return request for comment.

Teachers who work at Ozark Montessori Academy, a charter school in Arkansas, also have to sign non-competes, agreeing to not “directly or indirectly … solicit, induce, recruit, or cause another person in their employ of Employer to terminate his/her employment for the purpose of joining, associating, or becoming employed with any business or activity which is in competition with Ozark Education, Inc.” The agreement lasts for two years after the teacher leaves the school, and it applies “in any area in which Employer plans to solicit or conduct business.” Charter teachers at Ozark are also required to sign confidentiality agreements that they will not directly or indirectly disclose “trade secrets” which are “used by Employer and give it an opportunity to obtain an advantage over competitors who do not know those trade secrets.”

The American Prospect contacted Ozark to inquire about their employment contract, and in regards to their non-compete requirement, a school representative said, “We pay for our teachers’ Montessori training, and since that’s such a big expense for us, we wanted in [the contract] that we’re not going to pay for a teacher’s training and then they go quit and work for someone else.”

The American Prospect reviewed a contract for another charter school in Washington, D.C., that, in addition to having a one-year non-compete provision and requiring teachers to keep “trade secrets” confidential during and after employment—including information related to the school’s “academic policies and strategies”—also requires teachers to not “create, or appear to create, a conflict of interest with Employee’s loyalty to or duties for” the school, “including, but not limited to, providing any tutoring for hire.”

This charter school also requires teachers to agree to mandatory arbitration—a process that involves waiving away your right to sue for grievances, or to contest the terms of the contract itself. The provision requires teachers to waive their rights accorded them by worker protection, civil-rights, and anti-discrimination acts, as follows:

The parties agree that … any dispute (“Dispute”) between the parties arising out of or relating to the Employee’s employment, or to the negotiation, execution, performance or termination of this Agreement or the Employee’s employment, including, but not limited to, any claim arising out of this Agreement, claims under Title VII of the Civil Rights Act of 1964, as amended, the Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990, Section 1981 of the Civil Rights Act of 1966, as amended, the Family Medical Leave Act, the Employee Retirement Income Security Act, and any similar federal, state or local law, statute, regulation, or any common law doctrine, whether that dispute arises during or after employment shall be resolved by final, binding, and non-appealable arbitration by one arbitrator in the Washington, D.C. metropolitan area, in accordance with the National Employment Arbitration Rules of the American Arbitration Association, as modified by the provisions of this Article.

The Covenant Keepers Charter School in Little Rock, Arkansas, requires its teachers to not disclose “trade secrets” and to agree to not work for any “business or activity in competition with the charter school” for two years after leaving, in “any area in which the Employer currently solicits or conducts business, and/or any area in which an Employer plans to solicit or conduct business.” The teacher also has to agree to pay liquidated damages in the amount of “$100,000 plus court costs, litigation expenses, and actual and reasonable attorneys’ fees” if the non-compete or confidentiality agreement is breached.

No one has sought to tally how many charter schools include non-compete agreements in their contracts. Schools certainly don’t publicize them; it often requires individual teachers coming forward to alert the public to their existence. A Gainesville, Florida, elementary school teacher wrote on a legal advice forum asking whether the non-compete agreement she signed at her charter school was enforceable. A teacher at the Pennsylvania Virtual Charter School confirmed to The American Prospect that they too must sign non-compete agreements.

The Prospect reached out to the National Association of Public Charter Schools to inquire if the group promoted any kind of model charter employment contract, or if there are any provisions they specifically discourage charter schools from adopting. Vanessa Descalzi, a senior communications manager, says her group had never heard of other charter schools with practices like suing departed teachers for liquidated damages, or including non-compete, or forced-arbitration clauses.

The revelation of such provisions in charter school contracts comes at a time when the Obama administration and the National Labor Relations Board have begun to crack down on overly broad confidentiality agreements, mandatory arbitrations, and non-compete clauses. The White House says 20 percent of American workers are bound by non-compete agreements, and just last week urged state legislatures and policymakers to ban them for certain categories of workers, particularly those unlikely to possess real trade secrets.

The Economic Policy Institute says survey evidence reveals that many workers have no idea they are bound by non-compete agreements, with fewer than one in five employees consulting an attorney before signing, and only about one in ten attempting to negotiate the terms of their agreement. And as Economic Policy Institute vice president Ross Eisenbrey notes, even when workers know about the clauses, it’s a choice “between taking a job and not taking it in a tough labor market that favors employers.”

Even if such provisions are one day banned by legislatures or nullified by the courts, their current inclusion within charter employment contracts may be enough to deter teachers from taking the legal risk of moving on to a different school. This may be what the employers are counting on.