Sunday, June 30, 2019

UN Guiding Business Principles Should Apply To Low Wage Workers

Guest Blogger Prof. Chaumtoli Huq writes in this two part series on the UN Guiding Business Principles and US advocacy.

Image1The New York Times headline, Why Are Taxi Drivers in New York Killing Themselves? should sound human rights alarms. Drivers who committed suicide shared with their families that they had a difficult time making a living as Uber began to dominate the ride-hailing, app-based taxi industry. This, combined with the existing exploitative lease driving system, unscrupulous loans and prior inaction by the City to cap the number of app-based vehicles, failed to provide the majority immigrant drivers a steady income. Instead, it forced them into greater debt and has worsened their working conditions.

When we think of corporate misconduct, we often think of overtly egregious examples in the Global South such as the Bhopal disaster, extractive industries like Shell in Nigeria, and in my own field of work, global labour rights, like Rana Plaza. It is rare to hear the Guiding Principles on Business and Human Rights (‘Guiding Principles’) discussed in relation to workers in the United States, particularly, immigrant workers. This is true even though in 2016 the United States launched a National Action Plan (NAP) on business and human rights as part of the State’s responsibility to disseminate and implement the Guiding Principles. However, a review by the International Corporate Accountability Roundtable found that the ‘scope of the NAP is completely extraterritorial, and the content did not address domestic business-related human rights issues.’

There is nothing in the Guiding Principles that would prevent the latter application, even as we have witnessed multinational companies thwart labour rights of workers in the United States from Walmart to app companies like Uber, Lyft and Amazon. In this blog, I argue that the Guiding Principles should be applied to low-wage workers across the United States by looking at the business impact of app-based companies such as Uber on depressing incomes, increasing precarity of low-wage and immigrant drivers, and congestion in an urban setting like New York City.

Uber’s Adverse Business Impact on Workers’ Rights in New York and Their Obligation to Remediate Harms

Taxi drivers and Uber app drivers are excluded from labour laws because they are classified as independent contractors and thus struggle to make wages and organize. This classification denies drivers a fundamental labour right recognized by the International Labour Organization (ILO): the freedom of association and right to collectively bargain. Major labour and employment laws in the United States apply to individuals legally defined as employees. For example, the National Labor Relations Act (NLRA), the federal law that protects the legal right to organize, excludes independent contractors such as app-drivers. Therefore, New York City Council has made efforts to provide some protections for them. It passed the first law in the country that provides a minimum pay rate per trip which could bring drivers pay equal to $17.22 an hour. It also passed a law imposing a one year cap on app-based licenses which was extended and would stabilize drivers’ income. Drivers globally want to organize as evidenced by the recent Uber strike led by drivers from New York to California. While the specific demands varied by locality, generally, drivers across the country wanted living wage, job security, and better treatment.

The Guiding Principles provide a framework to clarify the role of multinational corporations with respect to human rights. It follows a protect, respect, and remedy doctrine where companies have a responsibility to protect human rights and are encouraged to remediate harms caused by their business activities. As part of Uber’s duty to protect against business-related harms under the Guiding Principles, it must take appropriate steps to ensure that those affected can have an effective judicial or non-judicial remedy. What we observe instead, is that Uber has proactively tried to thwart any laws that would protect the rights of drivers. It spent millions of dollars to prevent the unionization of drivers across the United States. It has worked actively to prevent the New York City Council from passing legislation that would temporarily halt the number of app vehicles on the streets to drive down the incomes of regulated yellow cab drivers. It sought to use race to manipulate a divide between the immigrant workforce and minority riders. It also actively campaigned against a bill that provides a minimum pay rate per ride for app drivers. Once passed, Lyft sued the New York City Council to invalidate the law, but the case was dismissed. It is trying to engage in deals with elected officials in California to dilute the right of drivers to form a union in contravention of ILO’s fundamental principles of work. These efforts failed due to the organizing of driver groups like the New York Taxi Workers Alliance and allied unions like 32BJ SEIU. Instead of allowing drivers to have a pathway to remediate the harms through local legislation or in courts, Uber and other ride-sharing services have attempted to deny core labour rights such as freedom of association, in direct contravention of their obligations under the Guiding Principles.

This post also appears in Cambridge Care Blog.

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