December 06, 2019
In the wake of the passage of a California law significantly expanding the definition of employee, New York lawmakers are looking to introduce similar legislation that would classify gig workers as employees while allowing them to unionize.
"A.B. 5-Plus": Like California’s now infamous gig worker bill, the planned New York legislation would codify “some version” of the controversial “ABC” test, making it much harder to classify gig and other workers as contractors instead of employees. The New York bill, however, has become styled as “A.B. 5-Plus” because it goes beyond the scope of California’s law by additionally giving those workers the right to unionize. “There’s no scenario I can imagine that’s not going to include collective bargaining,” said Sen. Diane Savino (D), while adding that any legislation that doesn’t include collective bargaining would be “an absolute nonstarter.”
Federal preemption? The National Labor Relations Act generally preempts state and local governments from enacting their own labor-relations laws, and thus any New York legislation giving gig workers collective bargaining rights could be subjected to legal challenge. This exact scenario occurred when Seattle attempted to give its gig workers the right to unionize in 2017, as federal courts struck down the ordinance on the grounds that it was not exempted from federal anti-trust law. However, the General Counsel for the National Labor Relations Board released a memo this year affirming that Uber drivers are not covered by federal labor law, which could provide a window for New York lawmakers to extend union rights to gig workers under state law.
“The [Seattle decision] suggested that a collective bargaining law at the municipal level would run into problems, but it left open the possibility for doing it at the state level,” said Charlotte Garden, a professor at the Seattle University School of Law. However, according to Glenn Spencer, labor and employment policy lobbyist for the U.S. Chamber of Commerce, it is “pretty certain that [the legislation] would get challenged and that [New York lawmakers] would lose.” An official with the NLRB commented that the General Counsel’s memo “does not mean the state would not be preempted."
Outlook: State Sen. Diane Savino (D) and Assemblyman Marcos Crespo (D) plan to introduce the legislation when New York lawmakers return to session in January. The pair introduced legislation this summer that would have extended certain employee-like rights to gig workers, but it failed to gain traction. The state assembly labor committee held a public hearing on December 5 on the gig worker classification issue, with another bill—one that is also modeled on AB-5 but would not extend collective bargaining rights—introduced by two different lawmakers also under consideration. Savino and Crespo expressed optimism that their planned legislation could succeed on the momentum of AB-5’s passage, while New York union leaders have yet to commit to supporting a specific bill. Regardless, the legislation would likely come under swift legal challenge that could set significant precedent for how states regulate their gig workers.