Will PERB Gain Jurisdiction Over Uber?

Are Uber drivers employees or independent contractors? And if they are independent contractors, how can they be organized to improve their working conditions? As the economy begins to rely more and more on “gig” workers, unions and employee advocates have been grappling with how to protect these workers and advance their working conditions. Last late year there were several articles discussing the “California 1099 Self-Organizing Act” which would bypass unions altogether and allow independent contractors to “negotiate” directly with companies like Uber. Only recently has the actual bill been introduced in the Legislature.

AB 1727 was amended on March 18, 2016, by Assemblywomen Lorena Gonzalez (D-San Diego) to incorporate the ideas behind the “California 1099 Self-Organizing Act.” Whether this bill constitutes a good idea I’ll leave to other commentators. However, one aspect of the bill that struck me was the role of the State Mediation and Conciliation Service (SMCS) which is now part of PERB.

Under AB 1727, SMCS is required to provide mediation services, including physical facilities for mediation, for groups of independent contractors who wish to negotiate with companies like Uber (the bill refers to these companies as “hosting platforms”). AB 1727 further provides that SMCS shall investigate allegations of bad faith bargaining (i.e. unfair practice charges). If SMCS finds probable cause for a violation, it must bring an action in San Francisco Superior Court for injunctive relief.

Comments:

As any employee at PERB will tell you, when PERB assumed jurisdiction over the MMBA in 2001 it was not given any additional money by the Legislature. The same was true when PERB assumed jurisdiction over several other acts. The end result is that PERB – to this day – operates with a structural deficit that is often filled by holding positions vacant for salary savings.
Given that PERB is already under-funded, the idea of giving PERB jurisdiction over enforcing this private sector act is highly problematic, in my humble opinion. I can’t imagine how PERB could possibly handle all the litigation that would initially be required without additional funds from the Legislature.
So I’m hoping that this bill is just the “initial salvo” and that it will be refined as it moves through the Legislature. One of those refinements will hopefully be giving PERB a new funding source if in fact it is to administer this bill.