Pass the PRO Act

image via https://passtheproact.org/

In the Fall of 2016, Instacart delivered devastating news: it would be removing the function that allowed customers to tip in-app. If you’ve ever worked as a gig worker, or even been a gig economy consumer, you’re probably very familiar with the idea that we’re overwhelmingly tipped digitally, through our employer’s software interface, and cash tips are exceptional and rare. Personally, tips constituted anywhere between a third and half of my gross earnings, and I could expect that without in-app tipping, my income would be reduced by as much as a result of Instacart’s unilateral decision to remove its tip input. I also understood that alone, my grievances would remain unheard and unrecognized.

My introduction to labor organizing was about as happenstantial as my introduction to gig work. I decided that I needed to do something about Instacart eliminating our tips, but I’d never formally organized in my workplace before, and I had no idea how to start. I decided to type “Boycott Instacart” into Instagram and see if there was anyone else thinking like me, and as it turned out there was. The first result was a newly created account titled “Instacart Boycott,” I sent them a DM, and we’ve been organizing together ever since. I started approaching every Shopper I encountered, extending an invitation to a new digital workspace for organizing that we simply called Instacart Shoppers National. From there we formulated plans for a multi-day walkout and asked each participant to personally approach and invite five more workers. From a group of about a dozen initial core organizers, organized resistance was born.

After our walk-out, Instacart capitulated and reinstated in-app tipping. While it was certainly a victory, it became clear that the structural issues of Instacart, like those inherent to all gig employers, would only become worse over time, as the balance of power tipped increasingly toward our employers.

Our organizing has resulted in the reinstatement of in-app tipping, the discontinuation of Instacart using tips to offset its own contributions to pay, the repayment of tens of millions of dollars in misappropriated tips to hundreds of thousands of Shoppers, and minimum batch pay guarantees. While these are all successes, we have accomplished these feats as a misclassified workforce, in the absence of any meaningful federal protections or recourse for grievances in our workplace. Due to this misclassification, we cannot form a union. The PRO Act would give us the protected right to organize and unionize in our workplace.

Organizing your workplace without the ability to unionize is especially precarious as remote, atomized, and misclassified workers. Every day that gig workers organize, we do so under the threat of deactivation — dystopian Silicon Valley tech-speak for being fired by our algorithmic overlords. Even if we avoid deactivation, as a misclassified workforce, we organize in the absence of protection under the NLRA, and with the ever-looming threat of being brought up on antitrust charges. As a worker-organizer who believes in building worker power, I often encounter workers who are too scared to speak out, knowing they aren’t protected.

Gig companies like Instacart understand that through the intentional misclassification of its workforce, it effectively weakens our power as organized workers. Our misclassification is by design, and bolsters their ability to exploit us. Our employers recognize that the real power lies in the hands of the workers, and they deeply fear the power of organized, unionized workers.

Unions are a powerful force in reducing inequality, raising workers out of poverty, reducing racial disparities in pay, and reducing gender disparities in pay. Unions are one of the most powerful tools for building substantial and forceful working-class political power. We are proud that through worker-led organizing, even in the absence of union representation, we have been able to improve material conditions for ourselves. However, the structural issues present in our workplace, the power imbalance between workers and our employers will only be dismantled through collective bargaining and representation in our workplaces. We must build a strong worker-led union to leverage our power to remedy the injustices of misclassification, and algorithmic management, while expanding our flexibility and agency at work.

So what is the PRO Act?(source)

• The PRO Act is the most comprehensive and vigorous expansion of federal labor organizing rights since the passage of the National Labor Relations Act (NLRA) of 1935.
• The PRO Act prevents employers from interfering in union elections & prohibits employers from requiring workers to attend anti-union meetings.
• The PRO Act removes prohibitions on workers acting in solidarity with workers at other workplaces & protects workers who engage in peaceful protest actions with their fellow workers.
• The PRO Act creates a mediation and arbitration process to ensure newly formed unions reach a first contract. Today, even when workers succeed in forming a union, nearly half of newly formed unions fail to ever reach a contract with the employer.
• The PRO Act prohibits companies from permanently replacing workers who participate in a strike.
• The PRO Act authorizes meaningful penalties for employers that violate workers’ rights.
• The PRO Act requires the NLRB to immediately seek an injunction to reinstate workers who suffer retaliation for exercising their rights.
• The PRO Act allows workers to seek justice in court when employers unlawfully interfere with their NLRA rights or retaliate against them for exercising NLRA rights.
• The PRO Act prevents workers from being denied remedies due to their immigration status.
• The PRO Act requires employers to post notices that inform workers of their rights under the National Labor Relations Act, and to disclose contracts with consultants hired to persuade employees on how to exercise their rights.

Protecting the right to organize is the most fundamental priority we must take on as workers. To be clear, conditions for workers have never improved without organizing. Bosses recognize this and act accordingly, so we must too. We’re here to build a worker-led, worker-organized union from the bottom up, and we must pass the PRO Act as a foundation upon which that movement is built. We need the robust protections of the PRO Act to ensure that our right to organize is not contingent upon the whims of administrations or appointed officials, but instead codified and enshrined into federal law.

In the wake of Prop 22, all of labor is under attack. Before all the votes in California were even tallied, Uber, Lyft, Instacart, DoorDash, and Postmates, signaled their intentions of taking their third classification model national. Let it be understood that misclassification did not begin with and does not end within the confines of the gig economy. Misclassification is a tried and true tactic companies have used for over a century to absolve themselves of the costs, risks, and liabilities of doing business, but it’s also a union-busting tactic. A workforce devoid of federally protected rights to organize and unionize, like ours, is ripe for exploitation. All employers, including the likes of Amazon, Walmart, and Target are already in the process of gigifying their workforces. Have no doubt, if all it takes is for your employer to hire you and deploy you through an app to pay you in piece rate and subvert existing labor laws, we will undoubtedly soon live in a world where Starbucks baristas are paid per latte they craft, Walmart cashiers paid per transaction they ring, or Amazon warehouse workers paid per order they pick and pack. Organizing, and more specifically unionizing is the only means we have of staving off the expansion of hyper exploitative corporations writing their own labor laws.

We’ve already seen the devastating fallout of Prop 22, and we need to look no further than California to see its painful ramifications for all workers. Instacart Shoppers in California are now held to stricter undisclosed algorithmic expectations, and some have already received notice that their accounts have been flagged for potential time and distance fraud, and for failure to meet the undisclosed standards of our algorithmic bosses. Workers are seeing less orders. California-based delivery drivers employed by Vons and Pavillions — both owned by grocery titan, Albertsons, were notified at the beginning of this year that they would be laid-off and replaced with misclassified DoorDash workers. GrubHub workers saw their defaulted tips drop from 20% to $0, so the company could add extra fees that they pocketed instead. A workforce that was stripped of even the most basic of labor protections like minimum wage, workers compensation, eligibility for employer-sponsored health care, and more during a global pandemic in which our labor was deemed essential.

The biggest myth perpetrated by gig companies is that there is something new, innovative, or unique about gig work that necessitates the creation of an entirely new classification of work. I am by every definition except my employer’s, an employee. A third classification is a sham, one that erodes both the rights and protections of properly classified employment, and properly classified independent contracting. It is our duty to obliterate it through collective action, organizing, and unionizing our workplaces. When Congress passes the PRO-Act, we will secure the federal rights and protections of employees organizing under the NLRB.

This is by necessity an intersectional struggle against racialized capitalism and xenophobic tendencies that view our predominantly immigrant, predominantly black, and brown workforce as displaceable and disposable. We are not disposable, we are not displaceable — we’re the backbone of the company and collectively we hold the power to bring their operations to a screeching halt.

I’m here to build solidarity and build a movement — in order to do that, my fellow workers and I must have the ability to form a union. Not a company-union. Not company endorsed concessions like sectoral bargaining, wage boards, or portable benefits. Not a quasi-union negotiated behind closed doors by third parties under the false pretense that we are independent contractors, or marketplace contractors, but a full-fledged, and powerful union built upon the undeniable truth that we are employees and deserve all of the robust rights and protections of properly classified employment.

Congress must pass the PRO Act.

Signed,

Vanessa Bain

Gig Workers Collective