Fall 2015

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80 CINEMONTAGE / FALL 2015 LABOR MAT TERS promises, according to interviews documented in a report released in September by the Center for Popular Democracy, a non-profit that works with community groups. It gathered responses from some 200 self- identified baristas in the US through the website "We're the first to admit we have work to do," said Jaime Riley, a company spokeswoman, asserting that all baristas now receive their schedules at least 10 days in advance. Charles DeWitt, vice president of business development at Kronos — a leading scheduling software maker that works with Starbucks — said that using the software to schedule workers three weeks in advance was not much less accurate than using it to schedule workers a week in advance. "The single best predictor of tomorrow is store demand a year ago," DeWitt said. DeWitt and other software designers concede that there are exceptions, like stores that are growing or declining rapidly, and that predictions often get better closer to the target date. NLRB REDEFINES 'JOINT EMPLOYERS' Widespread use of sub-contractors and franchises is one of the strategies companies use to get away with workplace abuses and avoid union organizing drives. The National Labor Relations Board shifted these rules in late August, writes Laura Clawson in The Daily Kos. "In the decision, the Board applies long-established principles to find that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or co-determine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board will — among other factors — consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so." "In the case of McDonald's, roughly 90 percent of its locations are actually run by franchisees, who are typically considered the workers' employers. One of the main reasons companies choose to franchise or to outsource work to staffing agencies is to shift workplace responsibilities onto someone else. But if a fast-food brand or a hotel chain can be deemed a 'joint employer' along with the smaller company, it can be dragged into labor disputes and negotiations that it conveniently wouldn't have to worry about otherwise. In theory, such a precedent could even make it easier for workers to unionize as employees under the larger parent company." In short, if you have control over how the work is done and the workers are paid and so on, you are a joint employer. The most interesting implication, given recent strikes in the fast food industry, is whether the decision means that corporate restaurants like McDonald's are a joint employer with their franchisees, writes Catherine Fisk in the online blog On Labor. The Board has cases pending that will examine this issue. It will decide them in due course. One issue the NLRB's Browning Ferris case does not decide is whether the common law right of control also has implications for a different issue, which is the difference between employees and independent contractors. If dissenting NLRB members are right, then the years- long effort by Federal Express to run a huge package delivery service without employing any drivers might fail, and so too might Uber's argument that it's become the country's fastest-growing taxi service by simply being a technology company that employs no drivers. WALKER EXITS '16 RACE, AFL-CIO CALLS HIM A 'DISGRACE' Warning that the Republican presidential race has become too nasty, Wisconsin Governor Scott Walker exited the 2016 campaign in late September. He urged others to quit too, so someone can emerge to take down front-runner Donald Trump. "Today, I believe that I am being called to lead by helping to clear the field in this race so that a positive conservative message can rise to the top," Walker said in a news conference covered by the Associated Press. The governor, who dropped out of the Republican race for president after only two months as a declared candidate, did so after making a litany of mistakes and missteps. He was widely criticized for arguing that his experience fighting unions in Wisconsin had prepared him for defeating the Islamic State in Syria and Iraq. He said it was "legitimate" to discuss building a wall along the US- Canadian border. And he gave three different answers about his position on birthright citizenship in just a week. Making matters worse, Walker's campaign made a "Hail Mary" effort to energize Republicans by reaching back to the issue that had made the governor one of his party's brightest White House hopes. He unveiled a sweeping blueprint for upending labor unions nationwide, a plan so aggressive that it was even criticized by some Republicans. Walker's departure prompted a good riddance from AFL-CIO president Richard Trumka, revealing the hostility between the governor and organized labor. "Scott Walker is still a disgrace," Trumka said, "just no longer national." f Fast food workers have been demonstrating for years. Here they are outside a Madison Avenue McDonald's in 2012 as part of a one-day strike. Courtesy of LaborNotes. org

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