The Biggest Strike in America Is About How Much Bosses Can Gut Your Healthcare

Originally published in VICE on September 18, 2019.
—-

When about 48,000 workers went on strike Monday against General Motors, they launched the largest American labor stoppage against any business since the financial crisis. The striking union—the United Auto Workers—is confronting vicious headwinds in the form of always-cheaper foreign labor, reduced car sales, and pressure to invest in electric and self-driving vehicles at a time of impending climate catastrophe.

On top of all that, workers formed picket lines because GM is trying to effectively cut their hard-fought healthcare benefits. According to the Center for Automotive Research, a Michigan-based think tank that receives some funding from auto companies, the average UAW worker pays about 3 percent of their health care tab, compared to 28 percent paid by the average American worker. Crain’s Detroit Business reported on Monday that GM’s initial contract offer asked workers to start paying 15 percent of their healthcare costs.

While such a move by an employer may seem fairly ordinary by contemporary standards, it wasn’t that long ago that Americans would have viewed this request as a huge scandal. In fact, experts said, that a once-mighty labor union is fighting tooth and nail to save generous health plans speaks to the economic precarity most Americans have grown to numbly accept.

“Having to pay large amounts of your health-care, that is still a fairly recent phenomenon,” said Erik Loomis, a labor historian at the University of Rhode Island and author of A History of America in Ten Strikes.

Loomis pointed to a 1983 labor stoppage where thousands of copper miners and mill workers went on strike for almost three years against the Arizona-based Phelps Dodge Corporation. “One of the key issues of that strike was that workers were so outraged by the request that they pay part of their health care,” he explained. “It was unprecedented, and yet today it’s become so normalized. Everyone complains about it, but employers just slowly force more and more of their costs onto their workers.”

Rather than ask why UAW workers pay so little in healthcare costs relative to others, Loomis said, the conversation should be framed around “workers defending what they have, and not letting companies cede more and more of their responsibility.”

Employer-based health insurance was actually something of a historical accident in the United States, led partly by labor unions that were barred from negotiating over wages during World War II. That led unions to begin focusing on other types of permissible fringe benefits, including employer-sponsored insurance. Many non-union companies followed suit, facing pressure to compete with unionized firms. Subsequent changes to the federal tax code made offering health insurance even more attractive for employers, so much so that 70 percent of the population was covered by private health insurance in the 1960s, up from nine percent in 1940.

Today, of course, when “job hopping” is common and the so-called gig economy means many workers are not full-time employees, it’s become painfully evident that tying health insurance to work is less than ideal.

Shaun Richman, who directs a labor studies center at SUNY Empire State College, said there is a strong case for “getting the boss out of the doctor’s office” altogether. Employer-based health insurance, he argued, “is plainly outmoded and is absolutely killing unions.” His thinking is partly strategic: Every time a union starts a round of contract negotiations, they almost invariably begin by fighting back against proposed healthcare cuts. “There’s simply no round of bargaining that employers won’t put healthcare on the table, and it’s been devastating,” Richman said.

Indeed, the fight over healthcare benefits is central to understanding the last few decades of labor disputes in the United States.

“The major issue we saw during labor walkouts in the 1990s and 2000s had to do with the restructuring of healthcare plans,” said Jake Rosenfeld, a sociologist at Washington University in St. Louis and author of What Unions No Longer Do. “Wages were really the secondary concern.”

Whether the auto workers can make their fight for affordable healthcare resonate with the broader public may be key to the UAW sustaining support for the strike in general. Alexander Hertel-Fernandez, a political scientist at Columbia’s School of International and Public Affairs, said auto workers might struggle to engender the same level of enthusiasm that striking teachers have across the country beginning last year. In fact, they might not even reach the same level of support as workers at other recent service-sector strikes like those at Stop & Shop grocery stores and Marriott hotels.

“My research and the work of others suggests that it may be easier for workers to build solidarity with their broader communities when they have daily interactions and are in the same social networks as the public,” Hertel-Fernandez said.

Still, as Rosenfeld pointed out, one thing working in the UAW’s favor is the clear profit margins enjoyed recently by U.S. auto companies. “GM is highly profitable now, and was bleeding money during the last 2007 walkout,” he said.

While the last UAW strike in 2007 ended after just two days, at least one union leader suggested Monday this labor stoppage could go on for much longer. On Tuesday, the White House reportedly began trying to broker a deal to end the strike, but GM also announced that it would be cutting off its share of strikers’ health benefits, shifting the burden to unions and telling workers they could apply for COBRA. On top of this financial blow, the average full-time UAW will be paid just $250-per-week while the strike stretches on—assuming the union’s strike fund holds up.

“They’re in a war for their lives, and the company is basically putting a gun to the unions’ head,” said Richman. “They’re saying we’ll reopen one of these factories if you agree to all these other concessions. I don’t think the UAW has much choice but to stand and fight, but this is not public education—schools can’t be shipped overseas. These jobs very much can be shipped overseas and have been. That threat is very real.”

Advertisements

8 Unions Have a Plan for Climate Action—But It Doesn’t Mention Fighting the Fossil Fuel Industry

Originally published in In These Times on August 26, 2019.
—–
On June 24, the BlueGreen Alliance—a national coalition which includes eight large labor unions and six influential environmental groups—released an eight-page document laying out its vision to curb climate change and reduce inequality. The report, dubbed Solidarity for Climate Action, marks a significant development in the world of environmental politics. It argues the needs of working people must be front-and-center as the U.S. responds to climate change, and rejects the “false choice” between economic security and a healthy planet.

While the report’s focus on public investment, good jobs and justice shares much in common with the federal Green New Deal resolution introduced in February, it also stands in tension with environmentalists who demand the U.S. work to transition more quickly away from oil, coal and natural gas. “We’d really like them to be stronger and more concise about what it means to move away from fossil fuels and transition to renewables,” said José Bravo, executive director of the Just Transition Alliance and speaking on behalf of the Climate Justice Alliance. Members of the BlueGreen Alliance say the ultimate goal should be to decarbonize the economy—to reduce CO2 emissions, but not necessarily end the fossil fuel industry itself, with its tens of thousands of high-paying jobs. Other climate groups say that won’t be enough, and humanity cannot afford to preserve industries that have caused so much environmental harm. This difference in vision will stand as one of the most fundamental political questions facing progressives in the next decade.

The report spells out a series of principles, including limiting warming to 1.5°C, expanding union jobs, modernizing infrastructure, bolstering environmental protections and rebuilding the nation’s manufacturing sector with green technologies. It also elevates the issue of equity, calling to “inject justice into our nation’s economy by ensuring that economic and environmental benefits of climate change solutions support the hardest hit workers and communities.” The BlueGreen Alliance emphasizes the disproportionate impact low-income workers and communities of color will face, and says those affected by the energy transition must receive “a just and viable transition” to new, high-quality union jobs.

To make its platform a reality, the BlueGreen Alliance endorses a host of specific policies and timetables, like reaching net-zero emissions by 2050, while being “solidly on a path” to that goal by 2030. Among other things, the report calls for measures like restoring forests and wildlands, cracking down on empl­oyee misclassification, making it easier to unionize one’s workplace, winning universal access to high-speed Internet, and “massive” economic investing in deindustrialized areas, “including remediating any immediate loss of tax base or public services for communities.”

Labor groups in the coalition include the United Steelworkers, the Utility Workers Union of America, the Service Employees International Union, the American Federation of Teachers, the Communications Workers of America, the United Association of Plumbers and Pipefitters, the Union of Bricklayers and Allied Craftworkers, and the International Association of Sheet Metal, Air, Rail, and Transportation Workers. The environmental organizations include the Sierra Club, the Natural Resources Defense Council, the National Wildlife Federation, the Union of Concerned Scientists, the Environmental Defense Action Fund, and the League of Conservation Voters.

Following the 2016 election, the coalition organized listening sessions with workers in communities that voted for Donald Trump, like in Macomb County, Michigan, and the Iron Range in Wisconsin. After those discussions, leaders started investing in broader polling, message-testing and focus groups. While opponents of regulating greenhouse gas emissions relish exploiting tensions between environmentalists and labor unions, Mike Williams, the deputy director of the BlueGreen Alliance, said it became clear from the research “that working people do quite care about climate change, but they also believe they should not be forced to make a choice between that and having a good job.”

“We went through a lot of iterations and a lot of conversations,” said Sara Chieffo, the vice president of government affairs for the League of Conservation Voters. “There was real unanimity that we were solving the twin crises of inequality and climate change.”

Jeremy Brecher, the co-founder of the Labor Network for Sustainability, which supports organized labor in tackling climate change, tells In These Times that he sees the Solidarity for Climate Action report as “quite a significant stepping out” for the BlueGreen Alliance. “The BGA was basically [created in 2006] to advocate for the growth and quality of jobs in the clean economy,” he said. “It did not take positions on targets and timetables for carbon reduction, clean coal and the KXL pipeline. It was a green jobs organization, which is important in terms of understanding where the BGA was coming from.” Brecher says the BlueGreen Alliance’s new statement “about the pace of greenhouse gas emission reductions and the absolute centrality and necessity of it is an extremely positive development.”

Evan Weber, the political director and co-founder of the Sunrise Movement, agrees. “I think the platform represents a really historic step forward for a number of the nation’s largest and most influential labor unions,” he said. “It leaves some questions about what needs to be done, and we’d like to see more ambition, but it is really meaningful that these groups and unions have come to the table and shown that they’re willing to move forward and not stay in the ways of the past.”

The Green New Deal resolution was introduced in Congress as the BlueGreen Alliance hashed out its own proposal. The leaders of some labor unions in the BlueGreen Alliance that represent workers in the fossil fuel industry—including the Steelworkers and the Utility Workers—have publicly voiced criticism of the Green New Deal, blasting it for a lack of specifics. The federal resolution “certainly took over a big portion of the national climate conversation, and a few of our partners were supportive, but there is also skepticism from the labor side,” said Williams. “As we were working we said we need to focus on our own process to see where we can forge alignment.”

Some hope the BlueGreen platform can serve as a policy blueprint for moving forward on the Green New Deal. SEIU, which represents 2 million workers, is both a BlueGreen coalition member and the first international union to back the federal Green New Deal resolution. “SEIU members know that we must take bold, immediate action on climate change, including holding corporations accountable for rampant pollution and ensuring good union jobs as we transition to a clean energy economy,” president Mary Kay Henry told In These Times. “That’s why we are proud to support both the Green New Deal, our North Star for what needs to be accomplished on climate change, and the BlueGreen Alliance’s platform, a roadmap for how we can get there.”

The League of Conservation Voters also endorsed the Green New Deal resolution back in February, and Chieffo told In These Times that her group sees the Solidarity for Climate Action report as “a really essential addition” to the conversation. “We are proud to endorse the Green New Deal and I think it’s incredibly valuable to have these eight powerful unions at the table laying out a proactive vision for how we tackle climate change.”

In These Times reached out to the original co-sponsors of the Green New Deal, Rep. Alexandria Ocasio-Cortez (D-N.Y.) and Sen. Ed Markey of (D-Mass.), for comment on the BlueGreen Alliance’s report.

Anika Legrand-Wittich, a spokesperson for Ocasio-Cortez, said while she was unable to reach the Congresswoman for specific comment, she “confirmed with our staff that we have indeed worked with BlueGreen Alliance and share many of their goals.”

Giselle Barry, a spokesperson for Sen. Markey, pointed to a supportive tweet the senator posted following the report’s release. It signal boosted the BlueGreen Alliance platform, and reads, “Transforming our economy and combatting climate change will create millions of jobs, but it won’t be possible without our workers and their families. Great to see our allies in organized labor continuing to make climate action a top priority.”

New Consensus, a think tank working to develop policies for the Green New Deal, said in an email “We don’t have any comment on the BGA report at this time.”

Fossil fuels

Despite its generally positive reception, the Solidarity for Climate Action has not gone without critique — and some environmental groups and labor leaders have raised issues and questions about the platform.

“I don’t think it goes far enough in terms of moving us definitively off fossil fuels at the speed that is required,” said Weber of the Sunrise Movement.

Brecher, of the Labor Network for Sustainability, said while overall the report marks a “very big step forward” for unions, he thinks its language “can use a little tightening up” to prevent groups from having too much “wiggle room.” He specifically pointed to language that America should be “on a pathway” to reducing its emissions, and suggests that be more specific. “It is overall quite close to the Green New Deal resolution, which also has a little wiggle room,” he said. (For example, most action items in the Green New Deal come with the caveat of “as much as is technologically feasible.”)

Julian Brave NoiseCat, the director of Green New Deal strategy at Data for Progress, a progressive think tank, said his organization’s vision for climate action shares a lot of overlap with the BlueGreen Alliance platform. But he noted BlueGreen Alliance’s does not include a 100% clean energy commitment, nor explicit provisions to phase-out fossil fuels, and it does not include a 10-year mobilization, in line with the Green New Deal. He also said he wonders whether the BlueGreen Alliance would support a federal jobs guarantee, or some other federal work provision.

Erich Pica, the president of Friends of the Earth, a climate group, said while it’s significant to see the labor movement taking proactive steps on the environment, as well as seeing the report’s emphasis on justice and equity, he protested its lack of mention of fossil fuels, natural gas, oil or coal. “How do you have solidarity for climate action when you’re not proactively calling out the very fuel sources that we have to eliminate from the U.S. economy?” he asked. “It says a lot of great things about how we want the economy structured, but in many ways it papers over where some of the greatest disagreement is between parts of the labor movement and the environmental community.”

Pica also acknowledged that the Green New Deal resolution did not make any mention of fossil fuels. “We were critical of that, too,” he said.

Mike Williams, of the BlueGreen Alliance, said while he understands that critique, he also thinks “it’s a bit much” to expect this platform to call for banning fossil fuels. “Our goal is to get climate pollution out of our economy by a certain time to avoid as much warming as possible, so we established our platform with the methods we think will help get us to those goals,” he said. “The banning of fossil fuels — that’s pretty controversial to expect of the people who represent the human beings who work in that sector. This is tens of thousands of people who work in these industries, and for a union to step out and say we’re going to end your job and the promise of a new job is a wink and a nod and a handshake. Well America has never before followed through on any proper transition, save for maybe the New Deal for white dudes.”

From Williams’ perspective, demanding unions call for ending their own jobs, before any sort of real alternative agreement is in place, is simply unrealistic. “It’s so mind boggling to think that people who represent folks who work in those industries would jump so far out ahead of where their membership is, and without any real forthright and immediately implementable solution,” he said.

Pica, of Friends of the Earth, also critiqued the BlueGreen Alliance for making no gesture toward campaigns to keep fossil fuels in the ground. “It’s been the divestment fights, trying to get universities and cities to divest their money from fossil fuel companies, that has been the fuel of the climate movement over the last decade,” he said.

Williams said the absence of certain “buzzwords” doesn’t diminish from what the document accomplishes. “We’re on the same side, and I truly respect [the environmental critics] and I hear them, but this is about building a broader movement that can get bigger solutions across the line,” he said.

Carbon-capture technology

Perhaps the most polarizing policy endorsed by the Solidarity for Climate Action report is that of carbon-capture technology, a method backed by the Intergovernmental Panel on Climate Change, and supported by most of the labor movement. But among environmentalists it’s more divisive, as some argue it will prolong dependence on fossil fuels, be too costly, and make it harder to reduce emissions overall.

“The fact that it’s included in the BGA report I think is very unfortunate and something that realistically has no chance of making a significant contribution to climate protection,” Brecher said. “Some of the other environmental groups are more squishy.”

Pica called carbon-capture “an expensive detour to nowhere” that’s a “nonstarter and at worse feeds kind of feeds false hope.” In January more than 600 environmental groups sent a letter to Congress saying they will—among other things—“vigorously oppose” federal climate legislation that promotes “corporate schemes” like carbon-capture and storage. Brecher and Pica’s groups were among the signatories. While the Green New Deal resolution is ambiguous on carbon-capture, last week Sen. Bernie Sanders released his presidential climate plan, which includes opposition to the technology.

Phil Smith, a spokesperson for the United Mine Workers of America, a labor union not represented in the BlueGreen Alliance, tells In These Times that there are aspects of the report his union agrees with, “especially with respect to carbon-capture technology.” But he critiqued it as not specific enough when it comes to defining what a “just transition” means. The platform calls for “guaranteed pensions and a bridge of wage support, healthcare and retirement security” until an impacted worker finds a new job or retires.

“Coal miners want to know what the hell you mean when you say you want a ‘just transition,’” Smith says. “Training to drive a truck is not a just transition. Training a miner to earn half of what they’re making now is not a just transition. … Our concern is once laws get passed to phase out carbon dioxide in 10 years, if we’re going to have a ‘just transition’ then we needed to be working on that 15 years ago. It’s just meaningless words on paper right now, and we keep seeing it over and over.”

Moving forward, members of the BlueGreen Alliance plan to promote the policies outlined in their new platform through legislative advocacy and local community organizing. In late July, the coalition sent a letter to the chairman of the House Subcommittee on Environment and Climate Change, Rep. Paul Tonko (D-N.Y.), and its ranking member, John Shimkus (R-Ill.), encouraging them to consider the Solidarity for Climate Action platform as they proceed in Congress.

“I think the next phase of work is educating elected officials on what’s in the platform,” said Chieffo. “And then really rolling up our sleeves to craft the legislation and hopefully future executive branch options needed to deliver it.”

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

Originally published in The Intercept on August 5, 2019.
—–

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.”

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.”

Conservatives Pushed a Strategy to Weaken Home Healthcare Unions. The Trump Administration Bit.

Originally published in The Intercept on May 31, 2019.
——-

EARLIER THIS MONTH, the Trump administration announced a new rule barring home health care workers from paying union dues through their Medicaid-funded wages. The new Department of Health and Human Services rule, which will impact more than 800,000 workers and was immediately met with a legal challenge, followed years of planning by anti-union activists to promote such measures in states across the country, and, more recently, on the federal level.

In anticipation of a crushing blow to public-sector unions by the U.S. Supreme Court last summer, conservative groups ramped up their efforts to bring the federal government’s attention to the issue of Medicaid-funded union dues, according to an audio recording obtained by The Intercept and Documented.

On an invitation-only call with donors last June, leaders with the State Policy Network — a corporate-backed umbrella group of right-wing think tanks across the country — raised the issue of directly deducting union dues from Medicaid-funded paychecks, what they call “dues-skimming.” Vinnie Vernuccio, a labor policy adviser to the State Policy Network told donors that its plan was to end this practice by getting “an administrative rule passed at Health and Human Services” and passing federal legislation with the assistance of Rep. Cathy McMorris Rodgers, R-Wash.

The legislation has not yet come — despite a promise from McMorris Rodgers announced at the start of 2018 that she would introduce a bill to this effect. The Department of Health and Human Services, however, announced less than two months after the call that it would consider amending its Obama-era rule, which it ultimately did this May. On the call, Vernuccio touted that the State Policy Network “is the only group that’s driving this effort at a national level.” A spokesperson for McMorris Rodgers did not respond to requests for comment.

Others on the call were Rebecca Painter, the vice president of development for SPN; Tracie Sharp, the president and CEO; Todd Davidson, the senior director of strategic development for the network; and Jennifer Butler, an SPN senior policy adviser. None of the five call leaders returned The Intercept’s requests for comment. Instead, SPN spokesperson Carrie Conko reached out and said she would address any inquiries. She wrote in an email that her coalition plans to keep fighting in Washington “on behalf of those who would rather not see their hard earned money siphoned from their paychecks and into big union’s political and lobbying activities.”

The 45-minute call came about two weeks before the Supreme Court’s ruling in Janus v. AFSCME, which struck down public-sector unions’ ability to charge fees to nonmembers who benefit from collective bargaining. SPN leaders voiced optimism that the case would bring them positive results.

“I want you to know that later this month, or any day now, the chances are good that we may actually have this unprecedented opportunity with the Janus Supreme Court case decision,” Sharp told her donors. “If it comes down on our side, of course, it makes every state a ‘right-to-work’ state. And so we have the opportunity to change the way the left funds everything that you and I disagree with.” At a different point on the call, she said, “Once this ruling comes down — and we do expect it to come down in our favor — everything will change. The door to pass a dream list of free-market reforms is going to swing open for us.” Vernuccio agreed. “Once the government union barrier is removed, everything else that matters to everyone on this call so much is that much closer within reach,” he said.

With a Janus victory in sight, an emboldened State Policy Network looked ahead to next steps, particularly taking the dues-skim fight from the states to Washington, D.C. SPN could “devolve power back to the states, communities, and most importantly, back to individuals,” Butler explained to the donors. “By harnessing all our expertise and all the resources at the federal level, we can stop this nationwide,” Vernuccio added. “So nothing really illustrates the power of SPN and the network better than what[‘s] gonna soon be a victory on the dues-skim.”

THE STATE POLICY Network’s first win on the dues-skim came in early 2013, just as Michigan became a “right-to-work” state. The SPN organization in Michigan, the Mackinac Center for Public Policy, convinced state lawmakers and Republican Gov. Rick Snyder to eliminate the ability of child care providers and home health care workers to deduct union dues from their paychecks.

The financial result has been devastating for unions: In the past seven years, SEIU Healthcare Michigan has seen an 84 percent drop membership and a 74 percent drop in revenue. Its political spending has also seen a major decline, from $3.5 million on lobbying and politics in 2012, to just $290,000 in 2016.

SEIU Healthcare Michigan spokesperson Adam Bingman told The Intercept that the rollback of protections for home health care workers has exacerbated the care crisis in his state. He’d recently gotten “two different calls from independent providers” who said they’re struggling to find qualified home health care workers. “The lack of union membership and the assault on home care workers, and those who rely on those services, has really hurt the ability to attract dedicated qualified home care professionals,” he said. According to Bingman, many home care workers have left to go work in nursing homes or find alternative employment.

While Michigan provided conservative activists a proof point of what’s possible with regards to weakening home health care unions, Republicans soon realized that passing similar measures in other states would not be as easy. “In Michigan, the Mackinac Center hit it out of the park; they stopped it,” said Vernuccio on the donor call. “But in a lot of other states, the political winds just simply didn’t align.”

Facing state-level opposition, the same conservative activists known for railing against federal intervention decided the time was necessary for federal intervention. Vernuccio explained how SPN “saw an opportunity to … harness everything that we learned” in Michigan and other states around stopping the so-called dues-skim and to bring that knowledge to D.C. “This means that states like California, Washington, Illinois that would need a huge political sea change to stop the skim at the state level will now have it stopped in D.C.,” he told the donors. “It also means that we’re focusing the firepower of the donations of people on the call and across the country — that instead of fighting an uphill battle in these states, we can win more quickly and more easily in Washington, D.C.”

Butler then shared that she had been taking caregivers to Congress to tell lawmakers how they’ve been affected by the dues-skim and unions. She cited a nearly half-hourlong meeting they had with Sen. Tim Scott, R-S.C., a few months prior. Federal disclosures show that Butler, on behalf of SPN, has lobbied the Senate, the House of Representatives, and Health and Human Services with the stated goal of ending the Medicaid dues-skim.

In April 2018, Sen. Ron Johnson, R-Wisc, chair of the Senate Committee on Homeland Security and Government Affairs, sent a letter to Centers for Medicare and Medicaid Services Administrator Seema Verma requesting that she look into the dues-skimming situation. His letter said that unions in 11 states were able to skim an estimated $200,000 in Medicaid payments each year, a statistic he attributed to a 2017 Mackinac Center policy brief. By August, Verma had announced that her agency was reconsidering the rule, and both Johnson and McMorris Rodgers submitted comments in favor of changing it.

The Mackinac Center cheered the Trump administration’s new rule, finally announced on May 2. “Ever since the Mackinac Center learned a decade ago of unions skimming funds from those caring for society’s most vulnerable — and in many cases, their own ailing family members — we began to actively seek to end this abhorrent practice,” said Joseph Lehman, the center’s president, in a statement. “This illegitimate action, negotiated between government and big unions, cost Michigan caregivers tens of millions of dollars. We were proud to litigate and bring an end to this practice for Michigan residents providing care to the disabled. Now, we celebrate with caregivers across the country who are finally afforded the same relief.”

A POWERPOINT PRESENTATION prepared by Heart+Mind Strategies for the State Policy Network in October 2017, and obtained by The Intercept and Documented, details carefully tested message research to help Republicans craft their talking points on this issue for lawmakers and the public. The research was conducted through a 25-minute online national survey between October 5 and 13, 2017, with over-samples in Texas, Illinois, Ohio, and Pennsylvania.

A “key messaging takeaway,” the consultants advised, was to be sure to not attack unions directly, as “they are seen positively by Americans” and most respondents “describe unions as fighting for higher wages and better benefits.” Only a minority of respondents, the consultants found, associate unions with “negative descriptors like corrupt, harmful, and dangerous.”

While the consultants acknowledged that “government labor unions” was the most effective way to negatively describe unions, even then they admitted that support for “government labor unions” was more positive than not. Still, the consultants said, “there are large groups of neutral Americans who can be moved on the issue.”

When it came to the dues-skimming issue, the consultants reported encouraging results for the Republican activists, saying that more than half of Americans oppose direct dues payments for government-funded home care workers and child care providers, and just half had existing knowledge of the policies. They found that most Americans have negative associations with the phrase “dues-skimming” — even before learning what it means.

To successfully fight direct union payments from child care workers and home care workers, the consultants advised activists to use messaging that included phrases like “as a condition of employment” or “forced to pay.” They also recommended focusing on language about taking money dedicated to people with disabilities and to avoid language around “growing the union’s treasure chest.” Coincidentally or not, the Department of Health and Human Services issued its new rule on similar lines, denying that it would interfere with voluntary union dues and insisting that it “in no way prevents” health care workers from paying dues to a union.

The Heart+Mind Strategies consultants also polled support for going through Health and Human Services to end the practice of union workers directly deducting their dues, and respondents supported the idea of the department sending a letter to states demanding that they end the practice by a 12-to-1 margin. This resembles the course of action the federal government ultimately pursued.

Conko, the SPN spokesperson, told The Intercept that the research from the PowerPoint presentation shows “that the general public agrees with us” about “right-to-work” laws and the Obama-era rule that allowed health home care workers to deduct union dues from their paychecks. Conko said the research was shared with state think tanks across the country and on SPN’s website, along with stories of workers “who wanted policymakers and others to know how the union’s practices were unfair and not always transparent.”

The messaging tips were consistent with SPN’s practices that The Intercept has previously reported on. The network has advised its member groups to avoid lodging direct attacks on unions because unions remain highly popular. Instead, SPN urged its state affiliates to stress that their efforts are about protecting workers’ “First Amendment rights of free speech and freedom of association.”

Bingman of SEIU Healthcare Michigan said the dramatic attacks on workers’ rights have “ultimately underlined that elections have consequences.” He pointed to the election of Democratic Gov. Gretchen Whitmer in November and said that his union, “along with organized labor, are really looking forward to changing things both here in Michigan and on the federal level.”

GOP-Led Efforts to Crush Unions Have a New Target: Home Health Care Workers

Originally published in The Intercept on May 16, 2019.
—-

Five states are pushing back against the latest Republican-led assault to weaken unions across the country, which targets in-home caregivers who work with Medicaid beneficiaries.

On Monday, attorneys general representing California, Connecticut, Oregon, Massachusetts, and Washington filed a lawsuit against the Trump administration challenging a new rule, announced earlier this month, that impedes home care workers from paying union dues through their Medicaid-funded paychecks. The rule, which goes into effect in July, will impact more than half a million workers in California alone, and several hundred thousand more in 10 other states.

The case was brought against the Department of Health and Human Services and its secretary, Alex Azar, and filed in San Francisco federal court. The plaintiffs argue that the defendants have illegally reinterpreted federal law “in service of anti-union objectives.” The new rule, they say, disrupts long-settled arrangements that allow seniors and individuals with disabilities — who work with state governments to set wages, benefits, and terms of service for their providers — to direct their own health care. More than 700,000 individuals across the five plaintiff states currently use consumer-directed Medicaid programs.

The lawsuit against the Trump administration rule, which was finalized by the Centers for Medicare and Medicaid Services, or CMS, comes the same week as two major developments for home care workers in the United States. In Washington state, Democratic Gov. Jay Inslee signed into law the nation’s first publicly funded long-term care benefit, a hard-fought victory by advocates including SEIU 775, which represents 45,000 home care workers in Washington and Montana. National advocates say they will use Washington’s policy as a model to push for in other states.

Also this week, the U.S. Supreme Court denied a petition to review a case led by a group of Minnesota home care workers who argued that a state law that made Service Employees International Union, or SEIU, their bargaining agent violated their First Amendment rights. The plaintiffs pointed to Janus v. American Federation of State, County, and Municipal Employees; the 2018 case struck down public sector unions charging fees to non-dues paying workers. The same conservative legal groups that supported Janus also helped the Minnesota home care providers, though this time their efforts failed.

While the high court’s ruling marks a setback to conservatives seeking to leverage free speech laws against union power, there are still dozensof other Janus-inspired lawsuits winding their way through federal courts, with two more lawsuits filedin the last month. This week’s lawsuit against HHS is the opposite of that — a proactive effort to get the courts to defend the rights of unionized workers.

The plaintiffs argue that HHS and Azar have violated the Administrative Procedures Act, the law governing how federal agencies can propose and implement regulation. Their complaint says the new rule “abruptly and without any sound rationale or conversations with affected states” overturns an Obama-era rule that confirmed the practice of taking direct deductions from home care workers’ paychecks. The Trump administration has been repeatedly accused of violating the APA, issuing new rules and mandates, and repealing old ones, often outside the bounds of established protocol.

“With this rule, the Trump administration is not only harming Medicaid skilled home care workers who have joined unions, but the millions of seniors and people with disabilities who depend on these indispensable workers,” said California Attorney General Xavier Becerra in a statement.

SEIU, which represents most home care workers, released a statement calling the rule “racist” — noting that 90 percent of home care workers are women, more than half are women of color, and a quarter are immigrants. “The administration’s attempt to silence home care workers reflects a long history in the United States of double-standard policies that deny working people of color like home care workers and domestic workers basic legal protections and rights, including protections for minimum wage and overtime pay, and the right to organize and form strong unions,” the union said. Without a union, SEIU added, independent home care workers earn a median wage of just $10.49 an hour, with no paid sick time or health care benefits.

The federal Bureau for Labor Statistics projects that demand for home care workers will increase by 41 percent between 2016 and 2026, as the baby-boom generation continues to get older. Union membership gives home care workers an incentive to stay on the job, according to a 2017 survey by the National Employment Law Project of more than 3,000 home care workers, of which one-third were union members. The researchers found that unionized respondents were more likely to expect to be a home care worker a year from now, less likely to be looking for other jobs outside of home care, more likely to receive benefits, and had higher wages on average.

The Trump administration announced last August that it was considering scrapping the Obama-era rule that affirmed home care workers could deduct union dues from their Medicaid-funded paychecks. This practice has been criticized by conservatives who argue that in-home caregivers shouldn’t be able to “skim” government funds away to union coffers and that doing so “damages the integrity” of the Medicaid program.

Mark Mix, the president of the National Right to Work Legal Defense Foundation, which files lawsuits in favor of banning unionized workplaces from requiring dues for bargaining representation, praised the Trump administration’s new rule in a statement, calling it a “long-overdue rule [that] closes the illegal loophole created by the Obama Administration that has provided union officials with legal cover to siphon hundreds of millions of dollars in Medicaid funds into union political and lobbying activities.”

In 2014, thanks to a lawsuit backed by Mix’s group, the U.S Supreme Court ruled in Harris v. Quinn that Illinois home care workers could not be required to pay union agency fees. Mix said the Trump administration’s new rule represents “another important step forward in protecting the rights of home care worker from rapacious union officials” and pointed to the 2014 Supreme Court decision, describing it as a situation where “[National Right to Work] Foundation attorneys freed homecare workers” from making payments.

CMS Administrator Seema Verma has denied their new rule is about making it harder for workers to be in unions; she said it’s simply to ensure that any diversion of Medicaid payments is truly lawful.

Last April, the Senate Committee on Homeland Security and Government Affairs — which is tasked with investigating “the efficiency, economy, and effectiveness” of all government agencies — wrote to Verma requesting that she look into this alleged “dues skimming” and cited rising Medicaid costs. The letter, authored by committee chairman Sen. Ron Johnson, R-Wisc., said allowing unions to take dues from home health care providers saps $200 million annually from Medicaid recipient care. Johnson asked CMS to review the practice “and determine whether changes to law or regulation are necessary to ensure Medicaid funds are provided to the program’s intended beneficiaries.”

“The effect of this final rule is the elimination of one method of getting payment from A to B,” the final rule states. “It in no way prevents healthcare workers from purchasing health insurance, enrolling in trainings, or paying dues to a union or other association.”

Critics say the Trump administration’s rationale makes no sense, pointing out that eliminating the ability to directly deduct union dues does nothing to curb Medicaid spending.

Caitlin Connolly, the director of social insurance at the National Employment Law Project, a union-backed legal advocacy group, told The Intercept the argument put forward by the Trump administration and its Republican allies is misleading because the money spent on dues is taken from workers’ wages, who get to decide how to spend the money that they earn.

“When I look at my paycheck, I get my wages and I decide, thanks to the convenience of my right as an employee, to allocate some of that money to a retirement account, some to a health savings account, and some to my union dues,” she said. ‘It’s my money, and I get to choose how to spend it. Just because the source of these workers’ wages is Medicaid dollars doesn’t mean they don’t have the right to choose how to spend it.”

And since workers are still able to take their wages and spend it on union dues, just without the convenience of direct paycheck deduction, Connolly said this shows the point is to create more hurdles for workers to jump through to exercise their union rights.

“I think there are locals working with members to see how they can handle dues payments in a way that would reduce the burden if direct deposit were restricted, and I think workers are sharing with them ideas on what would be helpful, but there’s nothing easier than saying, ‘I don’t have to think about this, I agree to this, and please take care of it,’” Connolly said.

Washington Becomes First State To Approve Publicly-Funded Long-Term Care

Originally published in The Intercept on April 26, 2019.
—–

Washington state lawmakers on Tuesday passed the nation’s first long-term care benefit program, which would provide residents with up to $36,500 to pay for costs like caregiving, wheelchair ramps, meal deliveries, and nursing home fees. Jay Inslee, Democratic governor and 2020 presidential candidate, has said he intends to sign the Long-Term Care Trust Act into law.

The measure is hailed as a monumental achievement not only for Washingtonians, but also for advocates working nationally to tackle the rising and formidable costs of care work and old age, something that’s become only more pressing as the baby boomer generation heads into retirement. The Long-Term Care Trust Act comes on the heels of a novel cash benefit program Hawaii launched in 2017 that distributes $70 a day for up to 365 days to family caregivers. A growing number of states have passed paid sick leave policies over the last five years, and more presidential candidates are elevating the issue of child care and how to afford it. Washington Rep. Pramila Jayapal’s new Medicare for All bill even includes coverage of long-term care, something not currently provided by the federal insurance program.

The ultimate goal, advocates say, is some kind of universal family care, a comprehensive social infrastructure to support all the varied costs of care work from birth to death. “That’s our North Star,” said Sarita Gupta, co-director of Caring Across Generations, a national campaign that launched in 2011. “We have really been trying to help people go from seeing care work as an individual burden to a shared responsibility that we’re all going to face.”

With the Long-Term Care Trust Act, taxpayers expect to save $3.9 billion in state Medicaid costs by 2052. The bill had bipartisan support early on, including three Republican co-sponsors, but it was approved largely along party lines in the Democratic-controlled legislature. Advocates for the bill said that Republicans voted against it for political reasons amid heated budget negotiations, and not because they disagreed with it in substance. Republican Reps. Drew MacEwen and Paul Harris, both original co-sponsors, did not return request for comment.

In some ways, it makes sense that the groundbreaking long-term care legislation would originate in Washington, which has been leading the country in progressive policies. In 2013, the small town of SeaTac, which surrounds the Seattle-Tacoma International Airport, voted to increase its minimum wage to $15 an hour. This marked the first real policy win for the nascent Fight for $15 movement. Seattle would becomethe first major U.S. city to approve a $15 minimum wage a year later. In 2016, voters approved a state ballot measure to raise Washington’s minimum wage and establish a paid sick leave program. The same year, SEIU 775, which represents 45,000 long-term care workers in Washington and Montana, negotiated a home care worker retirement benefit, the first of its kind in the nation.

“We first started talking about long-term care about 10 years ago, because the funding system is really broken and because we’re focused on lifting caregivers out of poverty,” said Sterling Harders, president of SEIU 775, which helped push for the bill. Harders said the union’s work began with commissioning studies, followed by many years of slow coalition-building. “I think it’s easy to forget on days like this when I’m jumping up and down celebrating our victory that we’ve essentially been working on this for the past decade, and intensely for the past three years,” she said. “This is really the end of a long road.”

The bill works like this: Beginning in 2022, workers will pay a modest monthly payroll tax, 58 cents for every $100 they earn in income. The per capita average income in Washington is about $37,000, meaning that the average monthly contribution would be about $18. Those who pay into the program for three years, or for a total of 10 years including five consecutive years, will be able to access the benefit, which, at present, maxes out at $36,500. In 30 years, as it’s indexed for inflation, the benefit will be more than $88,000.

The $36,500 could pay for respite care, in-home caregiving, time in a nursing home or assisted living facility, home modifications like constructing a wheelchair ramp, and other elderly care expenses.

The legislation was first considered by lawmakers in 2018, but at the last minute, the state’s chapter of the American Association of Retired Persons, or AARP, withdrew its support, citing disputes over details like eligibility for qualifying as a caregiver. Members of civil rights, disability, senior, and health care groups who organized under the banner of Washingtonians for a Responsible Future reconvened this year to hash out compromises.

“I think what changed this year is that coalition members just met more and worked more closely to hear each other’s concerns,” said Janet Kim, a spokesperson for Caring Across Generations. “The resulting policy is more comprehensive and flexible than what was considered in 2018.”

Legislators worked on the bill with a few key facts in mind: Caregiving is an increasingly stressful burden for not only seniors, but also for their family members. Nationally, relatives spend an average of 20 percent of their own money on caregiving costs, according to the AARP, and often have to leave their jobs, sacrificing hundreds of thousands of dollars in income and benefits. A 2018 Associated Press-NORC Center for Public Affairs Research poll found that approximately two-thirds of adults support a long-term care program like Medicare, including 76 percent of Democrats and 56 percent of Republicans.

In addition, legislators grappled with the mounting strain on the state’s budget. Seventy percent of Americans end up needing long-term care after turning 65, and more than 90 percent of people do not have private long-term care insurance. While Medicare does not cover the cost of most long-term care services, many individuals don’t realize this until it’s too late. Medicaid, however, does cover long-term care services, but to access it, individuals have to deplete their assets until they have less than $2,000 in savings, a system that literally incentivizes going into poverty. As Washington’s population gets older, actuaries have projected that the state’s Medicaid-funded long-term care program would almost double to $4.01 billion annually by 2030.

Ruth Egger, A 65-year-old retiree in Seattle and a part-time caregiver for her parents, has advocated for the bill since it was first introduced. Though she and her parents, who are in their 90s, are unlikely to directly benefit from the Long-Term Care Trust Act, she said her personal experience as a caregiver and her professional experience as a social worker motivated her to fight for the legislation. She personally testified in support of the bill last year and this year before the Washington State Legislature.

Egger’s father fell and broke his hip a few years ago, which brought on debilitating depression. “My father temporarily lost the ability to dress himself, and if he had had access to this benefit, he would have been able to pay for an aide to come help him,” she said. “It was exhausting watching him trying to figure out how to get his clothes on, and at that point, it would have been really beneficial if he had access to this extra money.”

Egger also stresses that so-called orphan elders — single seniors, or seniors who never had children or have children who live across the country or abroad — are also in particular need for long-term care assistance. “They get old and they have no support to help them, and they may need someone to come in twice a week and help them bathe or set up their medication,” she explained.

Washington’s benefit could also prove beneficial to the long-term care insurance industry. “Those companies didn’t expect people to live so long and to pay out so much, so fewer companies are writing those [long-term care] plans,” said Egger. Some experts think that the Long-Term Care Trust Act will make the economics of supplemental long-term care insurance plans more feasible, similar to the supplemental private Medicare insurance that 13 million Americans currently pay for. A recent article in Forbes reported that insurance industry officials expressed interest “in developing products” to supplement what Washington state is proposing.

Ultimately, Harders sees the Long-Term Care Trust Act as not just providing a needed economic benefit, but also as one more step toward elevating the field of caregiving, which is largely dominated by unpaid or low-wage women and people of color.

“Caregivers are really members of a larger health care team; they spend hours and hours with the person they’re taking care of, they know when that person has changes in their health condition, when someone is losing weight, when someone gets dizzy, but it’s really a struggle for caregivers to be taken seriously as health care professionals,” Harders said. “That’s part of why this bill is so important for our union because we feel this is a step down the path of making sure caregivers are given the respect they deserve.”

Labor Unions Are Skeptical of the Green New Deal, And They Want Activists To Hear Them Out

Originally published in The Intercept on Feb. 28, 2019.
——

Deciding whether to sign onto the Green New Deal resolution is not an easy call for many members of Congress. They have to contend with the usual opponents: coal, utilities, oil companies, and other big-pocketed interests who like today’s economic order just fine. But even on the left, coalition-building can be complicated.

After signing onto the Green New Deal as an original sponsor, one House Democrat felt that acutely when he traveled back to his district and met with two top local labor leaders. The congressperson, who asked not to be named, said he faced harsh criticism from building trade representatives who worried the plan would put their members out of work. He pushed back, arguing that their members will actually fare better with a green infrastructure plan that can drive up wages for blue collar work, pointing to jobs like retrofitting buildings and constructing renewable energy infrastructure.

Recent polling has found strong bipartisan support for a Green New Deal, but unions, a key constituency, have been less than enthused by — and in some cases, downright hostile to — the ambitious proposal to tackle climate change.

Terry O’Sullivan, the general president of the Laborers’ International Union of North America, or LIUNA, denounced the Green New Deal the day it was introduced by Rep. Alexandria Ocasio-Cortez, D-N.Y., and Sen. Ed Markey, D-Mass. In a blistering statement, O’Sullivan said it was “exactly how not to enact a progressive agenda to address our nation’s dangerous income inequality” and “exactly how not to win support for critical measures to curb climate change.”

For many observers, the construction union’s opposition was not too surprising. LIUNA had ardently supported the Dakota Access pipeline and said in 2016 that the labor organizations who opposed the project were “self-righteous” and “display[ing] a truly amazing level of hypocrisy and ignorance.” In January 2017, shortly after Donald Trump’s inauguration, LIUNA was one of several building trade unions to meet with the president, later praising Trump’s “remarkable courtesy” and affirmed that LIUNA “look[s] forward” to partnering with the White House on infrastructure.

Some climate activists have said that support for the Green New Deal should be a litmus test for progressives. Writing for The Intercept, Naomi Klein argued recently that the labor movement should “confront and isolate” LiUNA over its opposition. “That could take the form of LIUNA members, confident that the Green New Deal will not leave them behind, voting out their pro-boss leaders,” she wrote. “Or it could end with LIUNA being tossed out of the AFL-CIO” — the American Federation of Labor and Congress of Industrial Organizations, the country’s largest umbrella group for unions — “for planetary malpractice.”

As advocates of the Green New Deal work to gin up more support for the resolution, they face the challenge of parsing out bad-faith criticisms from legitimate critiques by those whose livelihoods would be impacted by a transition to green jobs. The way they straddle that line and respond to those concerns could make all the difference in getting the critical mass of support needed for the Green New Deal to pass.

Ocasio-Cortez and Markey’s nonbinding resolution includes explicit language backing union jobs that pay prevailing wages and a commitment for “wage and benefit parity for workers” affected by the energy transition. The Green New Deal also calls for “strengthening and protecting” the right of workers to organize and collectively bargain, and for “enacting and enforcing trade rules, procurement standards, and border adjustments” with strong labor protections.

Despite those promises, only one big union, 32BJ SEIU, has come out swinging in support of the Green New Deal. The majority of labor organizations have so far stayed quiet or voiced skepticism or criticism. The opposition, particularly for those in the building industry, is rooted in concerns about jobs and wages, as well as the approaches favored in the resolution for decreasing carbon emissions. There is also a political thread, with Trump-voting Republican coal miners, for example, hesitant to embrace a policy that has been sponsored only by members of the Democratic caucus.

Evan Weber, political director at Sunrise Movement, the youth advocacy organization credited with putting the Green New Deal on the political map, suggested that his group is not too worried about labor’s early response. “Since the resolution launched, a few [unions] have put out negative and less-than-enthusiastic statements about the Green New Deal,” he said, “but most are remaining silent and choosing to view this as a potential opportunity.”

Two weeks ago, seven unions representing workers in the building industry sent a letter to the chair of the House Energy and Commerce Committee, Rep. Frank Pallone, D-N.J., and its ranking member, Rep. Greg Walden, R-Ore., saying they “have grave concerns about unrealistic solutions such as those advocated in the ‘Green New Deal.’” The unions have also used the letter — which outlines their climate legislative priorities — in meetings with House members and senators since January, according to Phil Smith, spokesperson for the United Mine Workers of America.

Despite advocating their position in Congress, the signatories have not yet made public statements on the Green New Deal. Mark Brueggenjohann, spokesperson for the International Brotherhood of Electrical Workers, which signed the letter, told The Intercept that his union is not commenting now on the resolution, but “will be better prepared to do so” when actual legislation is available.

One climate strategy that many unions have said is important is investing in carbon capture technology and storage — a conceivable, if yet to be realized, way to prevent most of the carbon dioxide produced by fossil fuel plants from entering the atmosphere. This method has already generated a bit of controversy in the rollout of the Green New Deal. 

In November, the Sunrise Movement called for a Green New Deal Select Committeethat included “funding massive investment in the drawdown and capture of greenhouse gases.” This language appeared to endorse research and development in carbon capture technology, something many climate experts say is necessary to keep the planet from overheating. But in January, as Robinson Meyer from The Atlantic reported, the drafters of the final version of that resolution quietly removed any reference to “capturing” greenhouse gases. Meyer noted that the United Nations’s Intergovernmental Panel on Climate Change, which last fall warned that a failure to make major changes to reduce global warming in the next 12 years will be catastrophic for the planet, “has not produced any projection that shows us hitting that [necessary decarbonization] target without massively deploying carbon-capture technology.”

Carbon capture technology is somewhat polarizing. Critics say it’s risky to bank on pricey technology that does not really exist yet, and they say that the fossil fuel industry uses the prospect of carbon capture as an excuse to avoid reining in their environmentally harmful businesses.

Supporters, however, argue that investing in carbon capture is scientifically necessary for reducing emissions globally and vital for maintaining economic stability. “Our union does not question the science about climate change, and we’ve been working for some time on ways to mitigate it,” said Smith, the spokesperson for the mine workers union. “The answer, to us, is not quit using coal, but to spend the kind of money that needs to be spent on carbon-capture technology, on a commercial scale in this country and across the world. The fact of the matter is, if you don’t do that, you’ll never solve the global crisis.”

The Green New Deal resolution doesn’t explicitly rule out carbon capture technology, but in a section that deals with removing greenhouse gases from the atmosphere, the authors endorse “proven low-tech solutions that increase soil carbon storage,” like protecting land and planting new trees. Other vaguely written sections of the resolution, however, could open the door for carbon-capture technology. The resolution endorses “creating solutions to remove” emissions, and endorses the international exchange of technology, products, and services to address climate change.

The resolution is nonbinding, so the inclusion or exclusion of a provision does not dictate how future legislation will be written, but it does suggest some hesitancy to embrace carbon capture technology and storage.

The Sunrise Movement does not see “a heavy role for carbon capture and storage,” said Weber, the group’s political director, though he said it could be worth investing in some research and development for so-called heavy industry like steelmaking and shipbuilding. He noted that carbon capture technology is “pretty expensive compared to just reducing emissions by moving toward alternative forms of energy.” Ocasio-Cortez’s and Markey’s offices did not return requests for comment.

As an alternative, Weber said photosynthesis should be seen as an optimal way to remove carbon dioxide from the atmosphere. “We think there’s a lot of upward potential here in the U.S. to do ecosystem restoration and preservation,” he said. “A number of studies have shown that that can really help us get toward our climate goals and we’re most interested in investing in those proven solutions.”

Laborers are also skeptical of what the Green New Deal’s promise for a “just transition” would mean in practice. “We think it’s very important to find out what a ‘just transition’ actually means and who gets to define it,” said Smith of the mine workers union. “And will people be paid what they’re earning now, with the same level of benefits? None of that has been clarified.”

Members of the United Mine Workers of America earn an average of $30 an hour, along with employer contributions to a 401(k), paid sick leave, paid vacation, and ample health benefits, according to Smith. “I think, frankly, if you’re able to say to these folks, here’s a $30-an-hour job with all the rest of the stuff you’re used to, and you’ll pretty much work the same hours, you’ll have folks say, ‘OK, I’ll consider this,’” he said. “But that’s not what anyone is saying. And it seems to us there’s a very naive view about what this is going to cost and where the money is going to come from.”

Saikat Chakrabati, Ocasio-Cortez’s chief of staff, responded to early criticisms of the Green New Deal by saying that they envision future legislation that would provide economic security to miners who would find a switch to a new career challenging.

When asked if his members see an urgency to address climate change, Smith said they haven’t done formal polling, but that “anecdotally, our membership is very split on that issue.” He noted that plenty of miners voted for Trump and tend to agree with his perspective on climate change.

Sean McGarvey, president of the North America’s Building Trades Unions, or NABTU, told Reuters that his members were skeptical of promises of “green jobs” and noted that “renewable energy firms have been less generous” than the oil and gas sector when it comes to paying their workers. Renewable jobs, notably, are generally safer than fossil fuel jobs and can be done anywhere in the country, unlike jobs that are dependent on the location of a mine or an oil rig.

Like the mine workers, when it comes to NABTU and other critics of the Green New Deal, members’ political orientations are relevant.

In 2016, NABTU, along with LIUNA and a handful of other unions, sent a letter to the AFL-CIO, calling on the federation to cut ties with Democratic billionaire donor Tom Steyer, a vocal critic of the Keystone oil pipeline. (Since Trump’s election, Steyer has also frequently called for the president’s impeachment.) Despite their agreement over Keystone, the groups’ partisan leanings are a bit divergent. In the 2018 cycle, NABTU gave 41 percent of its political action committee contributions to Democratic candidates and 59 percent to Republicans. More than 75 percent of LIUNA’s contributions, by contrast, went to Democrats in the last election.

NABTU and LIUNA did not return multiple requests for comment.

Weber, the Sunrise Movement’s political director, said some of the concerns unions have raised about needing more specificity are “completely valid,” though he accused LIUNA of lying about what the resolution contains and misrepresenting climate science. “It’s always kind of disappointing to see potential allies resort to tactics that we see the right wing and our common enemies using,” he said.

With respect to labor issues, Weber said, the Green New Deal is “leaps and bounds ahead of previous climate proposals.” From his group’s perspective, if energy workers cannot find new jobs that pay them equal to what they’re currently earning, then “the government should step in and make up that difference,” he said.

“I think the job guarantee is a really critical element of the Green New Deal,” he said. “It doesn’t say if you’re a coal miner, you’re now going to go work on installing solar panels, it asks what are the jobs that make sense for your community and have this transition be something that’s locally determined.”

The union that has offered the most enthusiasm for the Green New Deal has been 32BJ, which represents 163,000 doormen, security officers, cleaners, and airport workers along the east coast. On February 6, the Joint Executive Board of 32BJ passed a resolution in support of the Green New Deal and “reaffirm[ed] its commitment to a 100 percent clean and renewable energy economy.”

In an interview with The Intercept, 32BJ’s New York City-based president, Héctor Figueroa, proudly noted that his union was the first to come out in support of the Green New Deal. “We can build unity in labor if we can recognize the urgency of the climate crisis” and effectively link the fight for climate justice to economic justice, he said.

Figueroa’s rhetoric is similar to that of Ocasio-Cortez and the Sunrise activists. He emphasized the need to take action “in a big, bold way” that addresses climate “concurrent to the problems of income inequality and declining labor standards.” He noted his personal connection — his family comes from Puerto Rico and has been dealing with the devastation wrought by Hurricane Maria — and he said two-thirds of their membership was born outside of the United States. “They know the impact of climate change back in their home countries,” he said. “They understand this is a global problem.”

32BJ’s February resolution on the Green New Deal “marked a new phase” in the union’s engagement on climate change, as for the past two decades, they’ve focused primarily on advocating for green jobs and energy efficiency standards, Figueroa said. “Now we’re taking another step, which is to very clearly and categorically say we need to build a future without fossil fuel,” he explained.

Their next task will be to pressure their national union, SEIU, to support the Green New Deal. “We are very passionate about it, and we believe it’s the right place for labor,” he said.

Other locals may also play a role in pressing their parent unions for support. Out in California, the San Diego and Imperial Counties Labor Council, of which an International Brotherhood of Electrical Workers local is a member, issued a resolution in support of the Green New Deal.

Aside from that, most unions have stayed silent — even those that have contributed to the discourse around climate change in the past. The AFL-CIO, for example, passed a resolution in October 2017 on “Climate Change, Energy, and Union Jobs.” The resolution affirmed the labor federation’s commitment to passing “energy and environmental policies with a focus on ensuring high labor standards, the creation of union jobs and environmental sustainability,” and also affirmed its support for enacting “comprehensive energy and climate legislation that creates good jobs and addresses the threat of climate change.” In 2009, the AFL-CIO worked to shape the House’s cap-and-trade bill. The American Clean Energy and Security Act — the name of which is conspicuously missing the term “climate change” — died in the Senate without a vote.

While the AFL-CIO has yet to issue a statement on the Green New Deal, in September, the federation’s president, Richard Trumka, gave a speech on fighting climate change that is telling of the group’s perspective. He said that “strategies that leave coal miners’ pension funds bankrupt, power plant workers unemployed, construction workers making less than they do now … plans that devastate communities today, while offering vague promises about the future … they are more than unjust. … They fundamentally undermine the power of the political coalition needed to address the climate crisis.”

The BlueGreen Alliance, a partnership of 14 unions and environmental organizations — including the Sierra Club and United Steelworkers — backed the cap-and-trade bill in 2009, but has not commented on the Green New Deal. (Spokesperson Abby Harvey declined The Intercept’s request for comment.) Critics have noted that BlueGreen Alliance tends to avoid weighing in on more controversial issues, like the Keystone XL pipeline. (LIUNA, which supported the pipeline, quit the alliance in 2012 over related disagreements.)

David Foster, the former executive director of the BlueGreen Alliance, wrote an op-ed in The Hill earlier this month, urging the public to study the lessons from a decade ago, the last time leaders called for a global Green New Deal. “Unless the transition to a clean energy economy is based on unifying politics, this next iteration will also prove another adventure in pyrrhic rhetoric,” Foster warned. A decade ago, unemployment was high and the price of oil was also skyrocketing. While neither are true today, he noted, inequality remains terrible and working conditions throughout the entire economy feel even more precarious.

The Sunrise Movement plans to launch a campaign in March to build more support for the Green New Deal, with events planned in states like Michigan, Kentucky, and Pennsylvania. “We’ve been working to get a lot of support from the grassroots and the grasstops,” Weber said, “and we’re going to keep doing that going forward.”

After Janus, The Country’s Largest Public-Sector Union Takes Stock of Its Movement

Originally published in The Intercept on July 5, 2018.
——

The annual meeting of the National Education Association, the country’s largest public-sector union, held in Minnesota this week was much more high stakes than in years past. Typically, the convention is a chance for educators to vote on bread-and-butter issues like budget priorities and advocacy target areas. But the 8,000 or so students, retired teachers, and NEA delegates who descended on the Minneapolis Convention Center had more existential questions on their minds. In the wake of a U.S. Supreme Court ruling that dealt a crippling blow to public-sector unions, they debated strategies to expand their membership, keep union members apprised of their rights, and recover from the impending financial loss that is sure to happen in a post-Janus world.

In Janus v. American Federation of State, County, and Municipal Employees, a 5-4 Supreme Court majority ruled last week that despite laws requiring public-sector unions to represent all workers in a workplace, fees charged to non-members to support the costs of collective bargaining violate the First Amendment. For more than four decades, the Court has held it constitutional for unions to collect money from non-members to support the costs of negotiating contracts on their behalf. Janus overturned that precedent, meaning that employees can now enjoy the benefits of collective bargaining without having to pay for it. Labor unions are bracing for substantial revenue loss.

Now, the choice before teachers is paying either hundreds of dollars in annual membership dues, or nothing at all. The NEA, which represents a little over 3 million members, is forecasting a loss of 370,000 members over the next two years. Approximately 88,000 educators have been non-members paying NEA agency fees, and the union anticipates at least several hundred thousand current members will also rescind their union cards.

“Janus was nothing more than a pretext for the Koch brothers and all their funded-friends to push for union members to drop out,” NEA President Lily Eskelsen García told The Intercept. “With Janus, they don’t care about the [agency] fee payers, they care about reducing our resources and our actual members.” She pointed to the multi-million dollar effort recently launched by a Koch-backed group to persuade dues-paying members to opt-out.

In light of these realities, the NEA approved a two-year budget at its convention that scales back union expenditures by $50 million. Union leadership maintains that this scaleback will not impact the organization’s political activities. “We’re looking at getting economies of scale as best we can,” explained Jim Testerman, the senior director at the NEA’s Center for Organizing. “How many more meetings can we do digitally, can we cut back on food, travel, are there different ways to approach the work. We also didn’t replace 40 staff who retired in January.”

While some states where NEA wields the most influence, like California, New York, and New Jersey, have required non-members to pay agency fees, the recent wave of teacher strikes that exploded across the nation in states like West Virginia, Arizona, and Oklahoma occurred in right-to-work states — which purport to protect workers from being required to join unions, but make collective bargaining more challenging and don’t require agency fees. Conservatives point to the walkouts as proof that agency fees aren’t really necessary. But workers in right-to-work states say they understand their efforts are aided by the national unions, which will certainly take a financial hit from Janus.

Back in the 1980s, when Eskelsen García was a 6th grade teacher, she served as bargaining chair for her union in Utah, a non-collective bargaining state. “There’s still a lot you can do without anyone’s permission,” she said. Just as superintendents and school board members largely supported the teachers who went on strike in red states this year, Eskelsen García said many administrators have shown willingness to bargain with unions even when not compelled to by state statute.

Indeed, at the NEA convention, despite the looming financial threats, the thousands of attendees were palpably emboldened by the teacher walkouts, collective actions that gave them a renewed and clearer sense of their own power. Though the protests were not union-initiated — beginning spontaneously with the grassroots — Testerman, of the NEA’s Center for Organizing, said his union is working to marry “the organic and the organized” as actions erupt. “It’s something we got better with over time, and Arizona was a good example,” he told The Intercept. “You don’t want the union to take it over, but having some organized entity who can get you permits and porta-potties and things like that can help you get even more done.” According to Testerman, Arizona’s NEA affiliate has seen an 8 percent increase in its membership since last year. “I don’t think the walkouts are over,” he added, noting that the future of the movement will depend on what happens in upcoming legislative sessions.

Delegates Reject Proposal to Open Union Membership to Supporters

One of the most contentious items considered at the NEA convention was a proposed constitutional amendment to create a new category of union membership, open to “any person who demonstrates support in advancing the cause of public education” and “advocates for the mission, vision and core values of the Association.”

The idea was formed last year in the wake of Betsy DeVos’s nomination to lead the Department of Education, Eskelsen García explained, when parents and community members flooded the NEA with questions on how they could speak out in opposition to DeVos and better support public education. Then, in the midst of the teacher strikes, the NEA president said, the outpouring support from non-educators proved crucial in building a broad political coalition for the walkouts. Under the proposal, so-called “community ally” members would pay minimal union dues but would be ineligible to vote on union matters or hold governance positions. The biggest opportunity this membership category would create, supporters explained, would be to make it possible for community allies to contribute to the NEA’s political action committee; only NEA members can legally contribute to the PAC, and given the expected decline in membership, this change would have given the PAC an additional stream of funds. The proposal also would have enabled the union to contact supportive members of the public directly. “We’re organizers in our bones,” Eskelsen García told The Intercept. “Why not organize them?”

The proposal triggered heated debate on Tuesday afternoon. Some members voiced concerns about opening up the union to outside political influence. “Selling stockholder shares in our union is a dangerous one,” warned a delegate from Michigan. “When you purchase stock, you expect a return on your investment.” Marshall Thompson, a delegate from Minnesota, called the idea half-baked. “Does my union card mean something or not?” he asked. “Bill Gates should not be able to buy one.”

NEA leadership defended the proposal, explaining that four other major unions, including AFCSME, have a similar membership category for the public, and all but 14 of the NEA’s state affiliates do too. For example, the Pennsylvania NEA affiliate has a “Partners for Public Education” membership category. Plus, NEA leaders added, community allies would have the same $5,000 political contribution limits to the PAC as do regular members. Tripp Jeffers, a delegate from North Carolina, spoke in favor of the amendment, saying a version of it already works well in his state. “We get by with a little help from our friends,” he quipped. Joe Thomas, the president of the Arizona Education Association, also defended the amendment, reminding the audience that the parents and community members who walked alongside educators during Arizona’s six-day teacher strike were instrumental in helping the union rebut the political narrative that their action was solely about teacher wages.

That was not enough to convince the 8,000 delegates, though. The measure was narrowly defeated on Wednesday, with just over 60 percent of delegates voting in favor. Constitutional amendments require a two-thirds majority to pass.

Reauthorization and Affirmative Consent

Janus has also sparked a legal and political debate over whether dues-paying members need to proactively reauthorize their union membership. The majority opinion, authored by Justice Samuel Alito, states that “neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay.” Conservatives have latched onto this “affirmative consent” idea to say that all those represented by a union, members and agency-fee payers alike, should have to affirmatively opt-in.

But labor groups have taken an alternative reading. At the NEA convention, the union’s general counsel Alice O’Brien told the crowd of delegates that Janus “does not mean that unions have to re-sign existing members. Janus is about fee payers,” she said. “Nothing in Janus supports an employer [who] insists a union must submit new proof that existing voluntary members want to remain members.”

Eskelsen García told The Intercept that the NEA has already received reports of school districts and school boards asking unions to submit new proof of membership. “But Janus doesn’t require that, and part of our mission right now is we have to make sure that our folks across the country understand that Janus was very specific in saying you can’t require a non-member to pay fees,” she said. “It doesn’t require re-signing up members, but we anticipated there would be a lot of misinformation from the Koch brothers and others. We’ll get this straightened out.”

The question over re-commitments first arose three years ago, when the Supreme Court heard the case of Friedrichs v. California Teachers Association, an anti-public sector union case considered to be the predecessor of Janus. (Friedrichs also challenged public-sector agency fees, but Justice Antonin Scalia’s unexpected death in 2016 resulted in a 4-4 decision that left the fees alive until Janus was brought before the court.) Despite the teacher union’s position that re-commitments are not legally necessary, both the NEA and the American Federation of Teachers have been working since then on getting re-commitments from all their members. The AFT reports that out of 800,000 members in 18 states with agency fees, more than 500,000 members have pledged membership renewals since January.

“The re-commit campaigns have really been an organizing strategy to go out and talk to our members about what these Supreme Court cases mean, and the value of belonging and acting collectively,” Testerman told The Intercept. “If members don’t know who the union is and what the union stands for, they are not likely to remain a member and we’re not taking anything for granted.” He said the NEA has seen a growth in membership for the last three years in a row, at an average of 0.5 percent per year.

But the tactics some union affiliates have taken to secure member re-commitments have stirred controversy, and they may be legally vulnerable in the post-Janus world.

In Minnesota, for example, the 86,000-member statewide teachers union asked educators to fill out membership renewal forms for the 2017-18 school year, authorizing the union to deduct dues. The forms included a fine-print disclosure that said “this authorization shall remain in effect and shall be automatically renewed from year to year, irrespective of my membership in the union, unless I revoke it by submitting written notice to both my employer and the local union during the seven-day period that begins on September 24 and ends on September 30. (emphasis added)”

The general counsel for the Center of the American Experiment, a conservative think tank, said the Minnesota teachers union was “betting that most teachers will just sign the card without reading it, or understanding what it means—and just keep paying.”

Los Angeles teachers took a similar approach. In its recommitment campaign, the United Teachers of Los Angeles asked members to sign membership forms with fine print that said, “This agreement shall be automatically renewed from year to year unless I revoke it in writing during the window period, irrespective of my membership in UTLA.” The legal language was first reported by Mike Antonucci, who runs the Education Intelligence Agency, a union watchdog site. “So a teacher who takes an administrative position, or leaves teaching altogether, and is then ineligible to be a UTLA member, will still be on the hook for dues payments until the next window comes around,” Antonucci surmised.

Both the Minnesota and Los Angeles re-commitment forms are constitutional under Janus’s “opt-in” requirement, said Charlotte Garden, a professor at Seattle University Law School. She added that she “also expect[s] the National Right to Work Foundation or other anti-union groups to challenge them in court, arguing they aren’t solicitous enough of objectors.” Garden said those types of challenges will “bring into conflict” two beliefs held by conservative members of the Supreme Court: that unions “must take various affirmative steps to facilitate the rights of objectors they represent” and that “employees should be held to the contracts they sign.”

Some conservative-backed litigation is already coming down the pipe.

Eight NEA state affiliates, including some in New York, Maryland, California, and Washington, are currently targets of class action lawsuits seeking to recover agency fees previously paid to the teacher unions before Janus. “The lawsuit we filed is a refund of the fees that were illegally retracted,” said John Bursch, the lawyer who filed the class action on behalf of California teachers. Alice O’Brien, the NEA’s general counsel, reminded delegates at the convention that whomever replaces Justice Anthony Kennedy, who announced his retirement just hours after siding with the majority in Janus, could help decide whether unions must pay back agency fees or not.

Another case, filed in February 2017, takes square aim at union opt-out rules. In Yohn v. California Teachers AssociationRyan Yohn and seven other California educators objected not only to paying agency fees but also to bureaucratic hurdles employees must go through if they want to opt-out of union membership. The teachers argue workers should have to affirmatively opt-in to a union, not opt-out. “We’re not free-riders, we’re forced riders,”one plaintiff told Education Week in February. The case is being brought by the Center for Individual Rights, the same libertarian law firm that brought the Friedrichs suit.

Sharon Block, the executive director of the Labor and Worklife Program at Harvard Law School, told The Intercept that she has no doubt that conservative groups will aim to push the limits of the Supreme Court’s holding in Janus for cases like Yohn. “I’m afraid that Janus has opened up additional fronts in the war these groups are waging on public-sector unions and the labor movement more generally,” she said. “We will see litigation for years.”

Union-Friendly Legislation in the Wake of Janus

In anticipation of a Supreme Court decision striking down agency fees, unions have been lobbying state legislators for the last few years to support new bills that could help labor strengthen its position. Specifically, labor organizations have pushed for new measures that would more easily allow union representatives to make the case for membership to new public-sector employees and to limit the services unions have to provide to non-members.

Last year in California, the legislature passed two such bills: one that allows public-sector unions to give presentations to new employees during their job orientations, and another that restricts what government employers can say to their staff about the pros and cons of joining a union. Two bills are pending now that would give labor groups an opportunity to weigh in on a worker’s intent to cancel their union dues.

Maryland legislators passed a bill this spring requiring new teachers to meet with a union representative within 30 days of their hiring or by their first pay period. It became law in April without the signature of Gov. Larry Hogan, a Republican.

New Jersey Gov. Phil Murphy, a Democrat, signed a more expansive bill in May that gives unions a number of new protections, including the right to meet with new employees for at least a half hour within 30 days of being hired and a guarantee that public employers will provide the union with exclusive representation contact information for all new employees.

In New York, Democratic Gov. Andrew Cuomo in April signed what he called “the Janus bill,” which in addition to providing unions with contact information for all new public-sector workers, also makes clear that unions are not required to provide non-members with the full range of union services. For example, non-members facing disciplinary charges will now have to obtain their own attorneys, whereas the union covers legal representation for dues-paying members. Last week, immediately following the Janus decision, Cuomo issued an executive order to protect public employee contact information from those who may try to target them in union opt-out campaigns. It was mostly a symbolic gesture, since the state already has similar privacy protections on the books.

Aside from these bills, Sharon Block of the Labor and Worklife Program at Harvard Law School and Benjamin Sachs, a Harvard Law School professor and editor-in-chief of the On Labor blog, put forth another legislative proposal to help unions cope after Janus. “The simplest, and the most effective, move would be for states to change, quite subtly, the accounting system for union dues,” they wrote last week in Vox. While unionized public-sector workers currently earn about 17 percent more than their non-unionized counterparts on average, the now-unconstitutional agency fees have comprised about 2 percent of that wage premium. Under the system reviewed by the Supreme Court, employers paid this 2 percent to workers, and workers then had to pay that money back to the union as an agency fee. “But if public employers simply paid the 2 percent directly to the unions — giving the same 15 percent raise to employees but not channeling the extra 2 percent through employee paychecks,” Block and Sachs wrote, “then there would be no possible claim that employees were being compelled to do anything, and thus no constitutional problem.”

“We’re up against something pretty scary,” Lily Eskelsen García said this week in Minneapolis, speaking before thousands of delegates. “Janus is the latest attack on our union, but this ain’t our first rodeo… We don’t get scared, we get ready.”

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

Originally published in The Intercept on June 28, 2018.
——

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.”