Theres nothing innovative about creating a whole new industry that is fueled on the backs of low-wage workers, said Seattle City Council member Mike OBrien, whos introducing legislation allowing Uber and Lyft drivers to bargain over pay and working conditions.
"There's nothing innovative about creating a whole new industry that is fueled on the backs of low-wage workers," said Seattle City Council member Mike O'Brien, who's introducing legislation allowing Uber and Lyft drivers to bargain over pay and working conditions. Dan Nolte, City of Seattle

Less than $2.75. That's how much Takele Gobena, who drives for Uber, Lyft, and Sidecar, says he made per hour in 2014 once he accounted for the cost of driving. Gobena stood with other drivers, representatives from Working Washington, and Seattle City Council members Mike O'Brien and Jean Godden today to announce a new bill that aims to do something unprecedented: allow for-hire drivers to unionize and bargain over pay and working conditions.

"People who see from the outside think we are making good money because the Seattle minimum [wage] is $15," said Gobena, who said he left a $9.47-an-hour job at the airport to drive for ride-share companies. "What we make is not even close to that."

In announcing the bill today, O'Brien framed it as a way to extend Seattle's robust labor laws to a group of workers who currently lack any real way of negotiating working conditions with their employer.

"What's happening for drivers is a race to the bottom," O'Brien said, "and it's not what we pride ourselves on in Seattle."

Advocates and drivers say that as Uber and Lyft strive to compete with each other for customers in Seattle, they're driving down rates, meaning drivers are making lower and lower wages. Drivers can also be quickly deactivated by the companies, meaning they're no longer able to drive.

"This is not a job for life," said Uber driver Peter Kuel after today's press conference. Kuel says he averages $120 to $180 for a 10- or 12-hour day before accounting for gas, insurance, and Uber's fees.

Worse than the hourly wage is the uncertainty. Kuel said since he switched from driving a taxi to driving for Uber last year, the company has cut its per-mile rates twice, with little notice to drivers. (The last cut, from $1.35 to $1.10 per mile, was later reversed.) The lower the rates, the more hours Kuel, a 40-year-old immigrant from South Sudan, has to work.

"We need Uber to be in the city," Kuel said, "but we need our fair share .... That's why we're here. We're trying to have a say."

These concerns aren't new, but O'Brien's tactic for addressing them is. If successful, his proposal could set a precedent that radically expands organizing rights for independent contractors across industries.

Currently, Uber and Lyft drivers are considered independent contractors, meaning they aren't protected by federal labor law (which allows for collective bargaining) or by Seattle's labor laws, which includes the minimum wage and paid sick and safe leave.

O'Brien's legislation, which he plans to introduce to the city council next week, would allow drivers to choose a nonprofit organization to represent them in bargaining negotiations with ride-share companies over pay and working conditions. (Drivers could also become members of the nonprofit.) The new process would cover taxi and for-hire vehicle drivers, as well as drivers for app-based companies like Lyft and Uber. Drivers currently get some organizing help from the Teamsters Local 117, but can't bargain directly with their corporate employers like they could if they had a union.

Under O'Brien's proposal, the city would approve the nonprofit organizations doing the bargaining and provide them with lists of all the drivers at each ride-share company. They would then have 120 days to show that a majority of the drivers for any one company wanted to be represented. After bargaining, the city would review final agreements only to make sure they're in line with city code, according to O'Brien. Failures in the bargaining process would end up in arbitration, and then the courts, rather than the National Labor Relations Board, would enforce the resulting contracts.

"This is unlike anything we've tried before," O'Brien said. "We know that Seattle is willing to do bold things, and once again we're trying to figure out how do we address the challenges that workers ... are facing in the current economy."

But his proposal is sure to face a legal challenge. Chelsea Wilson, spokesperson for Lyft, said in a statement the legislation "raises a wide range of questions," including the fact that drivers' information would be turned over to the nonprofits "without their consent." "Applying this proposal narrowly to one industry is also a serious concern," Wilson wrote. (A spokesperson for Uber sent only the following statement: "Uber is an important contributor to the local economy in Seattle—helping to create new opportunities for many people to earn a better living.")

Opponents are also likely to argue that federal law, which specifically says independent contractors are not employees, preempts any local law giving these workers bargaining rights.

However, states have extended bargaining rights to some employees who aren't covered by the National Labor Relations Act. In California, farm workers, who are also exempted from the federal law, were given the right to unionize. But there's little precedent for doing the same for independent contractors. Rebecca Smith, deputy director of the National Employment Law Project, said O'Brien's proposal would be "breaking new ground."

University of North Carolina School of Law Professor Jeffrey Hirsch told The Washington Post, which broke the news about O'Brien's plans this morning, that the exclusion of independent contractors from the National Labor Relations Act "pre-empts state or local governments from saying 'no no, they do have rights.' I do not see this going anywhere.

But O'Brien says the laws giving the city the ability to license and regulate drivers also gives the council "clear authority" to pass this new bargaining structure.

In the meantime, the council member and others are bracing for an ugly fight. Uber is known for its aggressive lobbying. When New York Mayor Bill de Blasio recently supported an effort to cap the growth of companies like Uber, the company ran TV ads, mocked the mayor with the dysfunctional "de Blasio mode" in its app, and eventually prevailed.

Seattle is different, argued Working Washington Executive Director Sejal Parikh, pointing to recent victories on minimum wage fights in Seattle and SeaTac. "Workers ... in this city will prevail," she said. Working Washington has crafted a "bill of rights", and is asking drivers and passengers to sign it. It says, in part, that "drivers should be guaranteed a living wage."

O'Brien seems primed for the argument that a move like this will stifle innovation, an oft-repeated line whenever regulations of the so-called "sharing economy" come up.

"There's nothing innovative about crafting a whole new industry that is fueled on the backs of low-wage workers," O'Brien said today.

Whether O'Brien can wrangle the necessary votes for a legally risky proposal remains to be seen. Godden stood with him in support of the legislation today, touting her own union membership and calling collective bargaining "the American way" and "the fair way." "In unity," she said, "there is strength."

Council member Tom Rasmussen, who chairs the council's transportation committee, said by e-mail that he supports "the right to organize and giving people the opportunity to have a strong voice in their working conditions" but that he has "heard that the city does not have the legal authority to enforce the legislation the Council Member O'Brien is developing. We will have to hear from our attorneys. This is a very intriguing concept and I look forward to learning more."

Other council members have not yet responded to requests for comment. Mayoral spokesperson Viet Shelton said in a statement: “Mayor Murray supports the right of workers to organize in order to create more just and fair workplaces. We are still reviewing the ordinance language to understand exactly how the bill would work and impact the city."

O'Brien said hopes the mayor will "be standing with us soon."

This post has been updated.