Jul 28, 2022
Labor experts and advocates on Wednesday expressed disbelief and outrage as the details of an "unconscionable" new bill purporting to expand "flexibility and choice" in workplaces came to light, condemning Democratic co-sponsor Rep. Henry Cuellar for proposing the gutting of minimum wage protections.
"This bill would allow employers to trample on the rights of an untold numbers of workers."
The Worker Flexibility and Choice Act (WFCA) was originally announced by Cuellar (Texas) and his Republican co-sponsors, Rep. Elise Stefanik (R-N.Y.) and Michelle Steel (R-Calif.), on July 20, but it wasn't until Wednesday that law professor Veena Dubal shared the text of the bill on social media, describing the proposal as "terrifying."
Aiming to create a new classification for people working in the gig economy for companies like Uber, Lyft, and DoorDash, the bill would amend the Fair Labor Standards Act of 1938 by establishing "worker flexibility agreements" in which a worker "will not be treated as an employee for federal tax purposes" and "is not subject to the minimum wage and overtime protections."
The proposal would not only affect gig workers, said Dubal, who is a professor at University of California Hastings College of Law, but would "carve workers out of minimum wage and overtime protections" whenever an employer sets work schedules "using algorithms and incentives instead of providing secure hours."
In other words, said former New York Times labor reporter Steven Greenhouse, "it seems to empower any employer--not just gig companies--to tell any worker: if you want to work for me, you must agree we won't follow minimum wage or overtime rules."
\u201cAs the result of such a bill, I can envision many Uber & Lyft drivers, DoorDash workers being told, If you want to work, you have to agree not to be considered an employee & not to receive minimum wage or OT. As a result, I can see tons of workers slaving away 70 hours a week.\u201d— Steven Greenhouse (@Steven Greenhouse) 1658949749
Rebecca Dixon, executive director of the National Employment Law Project (NELP), noted that the bill is being backed by "the corporate lobby group the Coalition for Workforce Innovation (CWI), which was established to fight against growing workers' movements."
The proposal is an attempt to capitalize on the notion that "flexible" working hours benefit workers, Dixon said, but "because the Fair Labor Standards Act (FLSA) is already compatible with worker flexibility, it would be a fatal mistake for Congress to create a carveout for companies that demand 'worker flexibility agreements' of their workforce."
Instead of actually providing flexibility, said Dubal, "as Uber, DoorDash, and Instacart have already done to their workforce, it would empower employers to force workers to work long and hard to eke out a living."
\u201cAnd all in the false name of flexibility. We know Uber driving is not flexible like they pretend it is -- there is nothing flexible about making so little that you have to eat, sleep, and work in your car to provide for your family. 5/\u201d— Veena Dubal - @firstname.lastname@example.org (@Veena Dubal - @email@example.com) 1658930909
Progressive critics of Cuellar were hardly surprised by his sponsorship of the bill, with Usamah Andrabi of the Justice Democrats noting that the anti-choice, anti-climate, pro-NRA lawmaker voted against the Protecting the Right to Organize (PRO) Act twice.
\u201cRemember when @RepCuellar was the only Democrat to vote against the PRO Act...twice? \n\nCc: Democratic leadership, who know that Henry Cuellar has always been anti-worker but still campaign for him.\u201d— usamah andrabi (@usamah andrabi) 1658940068
The bill intensified outrage over the support Cuellar garnered from Democratic leaders including House Speaker Nancy Pelosi (D-Calif.), House Majority Leader Steny Hoyer (D-Md.), and House Majority Whip James Clyburn (D-S.C.) earlier this year when he faced progressive immigrant rights advocate Jessica Cisneros in the Democratic primary for a second time, winning by just 289 votes.
\u201cHenry Cuellar, the anti-abortion Democrat that party leadership campaigned for against a progressive challenger, has introduced a law that would exempt gig workers from the federal minimum wage of $7.25, and prevent states from passing their own laws ensuring they\u2019re paid more.\u201d— Read Jackson Rising by @CooperationJXN (@Read Jackson Rising by @CooperationJXN) 1658945443
Cuellar's bill could particularly harm Texans, Cisneros noted, considering the state's minimum wage is among the lowest in the nation.
"Texas still has a $7.25 minimum wage and Cuellar thinks working people in our district don't even deserve that," said Cisneros. "How are Democrats supposed to energize South Texans for the midterms with this?"
The proposal amounts to a "boldfaced lie," said the Transport Workers Union of America (TWU).
"If corporate interests were actually serious about workplace flexibility, you'd see them supporting the rights of their employees to have a say in what goes on in the workplace; paying people wages that keep up with the rising costs of living; and encouraging working parents to take time off to care for sick children," said John Samuelson, international president of the union.
"Instead, this dangerous piece of legislation seeks to deny all of these rights to working Americans AND forbid states and cities from taking any action to hold criminal corporations accountable," he added. "This bill would allow employers to trample on the rights of an untold numbers of workers."
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