The Future of the Low-Wage Worker Movement May Depend on a Little-Known New York Law

Max Zahn

(Michael Fleschman / Flickr)

This arti­cle first appeared in Wag­ing Non­vi­o­lence.

Flavia Cabral doesn’t equiv­o­cate. She joined the fast food work­er move­ment, she said, for a sin­gle rea­son: to put her daugh­ter through college.

Cabral, 53, of the Bronx, earned $7.25 per hour at McDonald’s when she stood along­side cowork­ers in her first sin­gle-day strike four years ago. Over 10 strikes lat­er, she makes $12 per hour, thanks to a statewide min­i­mum wage hike that will grad­u­al­ly ele­vate her pay to $15 by the end of 2018.

Still, her goal remains out of reach.

I don’t have enough sav­ings for my daugh­ter to fin­ish col­lege,” she said. I want her to graduate.”

Cabral’s predica­ment is emblem­at­ic of one fac­ing the Fight for $15: how to move beyond its tit­u­lar demand to address oth­er bar­ri­ers that are keep­ing fast food work­ers from a mid­dle class life. These obsta­cles include insuf­fi­cient hours, non-union work­places and crip­pling expens­es like hous­ing, health insur­ance and col­lege education.

Fight for $15 won an impor­tant vic­to­ry on one of these fronts in late-May when the New York City Coun­cil passed a bun­dle of laws that guar­an­tee pre­dictable sched­ules and require restau­rants to offer addi­tion­al hours to cur­rent work­ers before hir­ing new employ­ees. Sim­i­lar laws have been passed in cities like Seat­tle and San Francisco.

A less her­ald­ed law with­in the pack­age of New York City reforms, how­ev­er, may hold the future of the fast food move­ment — and, if suc­cess­ful, will offer an inroad to union­iz­ing the 42 per­cent of Amer­i­can work­ers who make less than $15 per hour.

The ordi­nance allows fast food work­ers to join a new type of labor orga­ni­za­tion, which will advo­cate for work­ers through­out the indus­try and sus­tain itself through dues deduct­ed vol­un­tar­i­ly from work­ers’ paychecks.

It is, some say, the ker­nel of what could become a sec­tor-wide fast food union — the movement’s holy grail.

In order to begin deduct­ing dues from work­ers’ pay­checks, the new orga­ni­za­tion, Fast Food Jus­tice, needs to sign up at least 500 work­ers and it aims to do so by the time the law goes into effect at the end of Novem­ber. Labor lead­ers in oth­er cities and low-wage sec­tors are watch­ing close­ly to find out if the mod­el is worth replicating.

There is a lot rid­ing on this exper­i­ment,” said Jan­ice Fine, a pro­fes­sor of labor stud­ies at Rut­gers Uni­ver­si­ty. It’s incred­i­bly impor­tant but we don’t know if it will work.”

When it began in New York City in 2012, the Fight for $15 made two demands on behalf of fast food work­ers: a $15 per hour min­i­mum wage and union rep­re­sen­ta­tion. Due to a head­line-grab­bing cam­paign of sin­gle-day strikes, the for­mer has enjoyed increas­ing pop­u­lar­i­ty and pol­i­cy suc­cess. Last year Cal­i­for­nia and New York each passed a statewide $15 min­i­mum wage; cities like Min­neapo­lis and Seat­tle have done so, too. When intro­duced in April, a U.S. Sen­ate bill call­ing for a $15 min­i­mum wage gar­nered sup­port from 24 sen­a­tors, includ­ing pro­gres­sive stal­warts like Bernie Sanders and cen­trist mem­bers like Charles Schumer and Cory Booker.

The union demand, on the oth­er hand, has stalled.

The urgency behind this demand springs not only from a need for work­er gains but move­ment sta­bil­i­ty. Since its incep­tion, Fight for $15 has received the entire­ty of its fund­ing from dues-pay­ing mem­bers of the Ser­vice Employ­ees Inter­na­tion­al Union or SEIU. But the 2‑mil­lion-mem­ber labor orga­ni­za­tion will cut over­all spend­ing by 10 per­cent this year and 30 per­cent in 2018 as it braces for Trump era polit­i­cal bat­tles and an unfa­vor­able Supreme Court deci­sion in Janus v. AFSCME —a relit­i­ga­tion of Friedrichs that could sub­stan­tial­ly reduce mem­ber­ship in pub­lic sec­tor locals. As of last year, the union had spent $70 mil­lion on the fast food cam­paign. It has yet to reap a pen­ny in dues from an indus­try worker.

There’s a prob­lem of insti­tu­tion­al­iza­tion and sus­tain­abil­i­ty,” said Nel­son Licht­en­stein, a labor his­to­ri­an and pro­fes­sor at the Uni­ver­si­ty of Cal­i­for­nia, San­ta Bar­bara. An inde­pen­dent source of income would give backbone.”

Hec­tor Figueroa, pres­i­dent of the pow­er­ful SEIU local 32BJ, said the lead­er­ship of SEIU is com­mit­ted to Fight for $15,” though he acknowl­edged that every­one will be affect­ed by the cuts, includ­ing the fast food cam­paign. We don’t feel par­tic­u­lar­ly dis­turbed or con­cerned about finan­cial deci­sions for the union. We take this fight very seriously.”

That said, Figueroa acknowl­edged that gain­ing union rep­re­sen­ta­tion remains a goal of the cam­paign. Cabral agreed. We want to fight for $15 and a union,” she said.

Obsta­cles to union­iza­tion for the 3.67 mil­lion fast food work­ers nation­wide, or even the 65,000 in New York City, are daunt­ing. Rapid employ­ee turnover cou­pled with the industry’s fran­chise mod­el ren­ders tra­di­tion­al store-by-store orga­niz­ing dif­fi­cult. The Nation­al Labor Rela­tions Board allowed for an alter­na­tive in 2015 when it loos­ened its stan­dard for whether a cor­po­ra­tion, say McDonald’s, can be con­sid­ered a joint employ­er along with its fran­chis­es, open­ing the door for a union of McDonald’s employ­ees nation­wide. But a Trump-appoint­ed board is almost cer­tain to reverse the NLRB decision.

Joint employ­er sta­tus will soon be out the door,” Figueroa said. We’re try­ing to adapt to con­tin­ue the cam­paign under a dif­fer­ent set of circumstances.”

Figueroa point­ed to a suc­cess­ful 32BJ dri­ve last year that forced mul­ti­ple con­trac­tors at air­ports in New York and New Jer­sey to rec­og­nize a union of 8,000 secu­ri­ty and main­te­nance workers.

With pub­lic sup­port and with work­ers con­tin­u­ing to raise issues, fran­chisors rec­og­nize it’s a sen­si­ble deci­sion to sup­port work­ers at the store lev­el,” he said. This is a brave new world.”

Even so, Figueroa con­ced­ed that the fast food cam­paign faces chal­lenges of a dif­fer­ent mag­ni­tude. These are mega com­pa­nies,” he said. They exist everywhere.”

It rais­es the ques­tion: can Fast Food Jus­tice enable the first step toward a con­crete fast food work­er organization?

Fast Food Jus­tice works like this: If at least 500 work­ers sign up to join the orga­ni­za­tion, it can begin receiv­ing con­tri­bu­tions from work­ers who vol­un­tar­i­ly deduct mon­ey from their pay­checks. Employ­ers, then, are respon­si­ble for trans­fer­ring the pay­ments to Fast Food Jus­tice. It’s as sim­ple as that.

The group plans to func­tion like a sec­tor-spe­cif­ic com­mu­ni­ty orga­ni­za­tion, offer­ing edu­ca­tion on work­er rights and advo­cat­ing on issues that con­front the fast food work­force, which is dis­pro­por­tion­ate­ly black and Latino.

We want to take on com­mu­ni­ty issues,” said Shantel Walk­er, a Papa John’s employ­ee and leader of the Fight for $15. We want to sup­port immi­gra­tion reform, and we need afford­able hous­ing and an end to police brutality.”

When you talk to work­ers they don’t just raise issues in the work­place, a pol­i­cy advo­ca­cy orga­ni­za­tion can make a dif­fer­ence for them at the New York City Coun­cil to effect change in dif­fer­ent ways and pro­vide out­reach and edu­ca­tion,” echoed Tsed­eye Gebre­se­lassie, a senior staff attor­ney at the Nation­al Employ­ment Law Project and a board mem­ber of Fast Food Justice.

This advo­ca­cy mod­el is hard­ly unprece­dent­ed. Mem­ber­ship-based groups like the Retail Action Project and the Taxi Work­ers Alliance, which rep­re­sents 19,000 taxi dri­vers in New York City, lack col­lec­tive bar­gain­ing rights but achieve gains on the job through polit­i­cal mobi­liza­tion off it. The Taxi Work­ers Alliance, for instance, orga­nized its large­ly immi­grant mem­ber­ship to car­ry out a ride boy­cott at JFK air­port in Jan­u­ary in response to the Trump trav­el ban.

Fast Food Jus­tice will bor­row from these fore­bears but will oper­ate under an entire­ly new fund­ing mech­a­nism. Oth­er groups ask work­ers to pay a month­ly or year­ly fee, but deduct­ing vol­un­tary dues direct­ly from pay­checks will allow the orga­ni­za­tion to secure reg­u­lar con­tri­bu­tions from work­ers who may lack bank accounts or deb­it cards.

Once you have dues check off, it’s much eas­i­er if you’re auto­mat­i­cal­ly opt­ed in and then don’t have to think about it again,” Licht­en­stein said.

More impor­tant­ly, it cen­ters dues pay­ment with­in each member’s store. Fast Food Jus­tice will ben­e­fit from sec­tor-wide breadth and the mas­sive poten­tial mem­ber­ship base it pro­vides. But unlike its peers, the group will anchor mem­ber­ship in worker’s rela­tion­ship to a spe­cif­ic store and boss.

It def­i­nite­ly cre­ates both a struc­ture and fund­ing base to orga­nize strong work­place-based orga­ni­za­tion,” said Karen Scharf, the exec­u­tive direc­tor of a statewide com­mu­ni­ty orga­ni­za­tion called Cit­i­zen Action and a New York State co-chair for the Work­ing Fam­i­lies Par­ty. It real­ly is the impor­tant next step for the fast food move­ment to be orga­niz­ing the shops.”

Stu­art Apple­baum, the pres­i­dent of the Retail, Whole­sale and Depart­ment Store Union applaud­ed the orga­ni­za­tion as a pos­i­tive step.”

Peo­ple who had no way of express­ing their voic­es before will now have an oppor­tu­ni­ty,” he said. I would hope that this would even­tu­al­ly lead to unionization.”

You can begin to have shop stew­ards in every store,” Licht­en­stein said, liken­ing the orga­ni­za­tion to a right-to-work union before catch­ing himself.

The more we like it, the more it looks like a union; and the more it looks like a union, the eas­i­er it is to attack it legal­ly,” he said.

Legal anx­i­eties, in this case, aren’t illus­tra­tive of an embat­tled left cry­ing wolf. They’re war­rant­ed. A law­suit could claim that the ordi­nance pre­empts the fed­er­al Nation­al Labor Rela­tions Act, which retains juris­dic­tion over what con­sti­tutes a labor orga­ni­za­tion, Licht­en­stein said. A pas­sage with­in the New York City law explic­it­ly states that it does not allow for con­tri­bu­tions to a labor orga­ni­za­tion, as defined by the NLRA. But a restau­rant trade group or con­ser­v­a­tive orga­ni­za­tion may argue otherwise.

Iron­i­cal­ly, the prospect puts Fast Food Jus­tice and 32BJ offi­cials in the posi­tion of argu­ing that the new orga­ni­za­tion doesn’t resem­ble a union, while crit­ics argue that it does.

It doesn’t get into issues of pay ter­mi­na­tions or griev­ances of the job,” Figueroa said. These are very dis­tinct func­tions of labor unions that the orga­ni­za­tion won’t touch.”

Gabre­sel­lasie added: This is not a union; it’s not try­ing to bar­gain with one employ­er or one workplace.”

Kevin Dugan, a region­al direc­tor with the New York State Restau­rant Asso­ci­a­tion, a trade orga­ni­za­tion that opposed the law, disagreed.

Asked if he thinks new orga­ni­za­tion amounts to a union, he said, it’s hard not to when you have groups like 32BJ fil­ing for non-prof­it des­ig­na­tions. Let the Depart­ment of Labor decide whether this is skirt­ing cer­tain reg­u­la­tions or not.”

Despite the saber rat­tling, Dugan acknowl­edged that nei­ther the New York State Restau­rant Asso­ci­a­tion nor its nation­wide umbrel­la orga­ni­za­tion is cur­rent­ly plan­ning to chal­lenge the law in court.

Of course such plans may change or anoth­er adver­sar­i­al group may step in to fill the void.

For now, though, the only obsta­cle pre­vent­ing this orga­ni­za­tion from col­lect­ing work­er dues is the min­i­mum 500 sign-ups nec­es­sary to trig­ger pay­ments. The orga­ni­za­tion would like to reach that num­ber by the time the law goes into effect at the end of Novem­ber. At first glance the task may appear easy, con­sid­er­ing the group can draw from a base of 65,000 work­ers. But Fast Food Jus­tice is gear­ing up for a mas­sive orga­niz­ing cam­paign to reach this ini­tial goal.

I think it’s a good test,” Fine said. If they can’t get there, it’s real­ly problematic.”

The orga­ni­za­tion has already begun hir­ing orga­niz­ers and sign­ing up work­ers, Fast Food Jus­tice spokesper­son Eliza Mar­gari­ta Bates said.

Reach­ing out to 500 indi­vid­u­als is not a quick process — that’s orga­niz­ing, right?” Gabre­se­lassie said. It’s not just going into one work­place; it’s going across the city.”

Ulti­mate­ly, she said, the task won’t be that stren­u­ous. We have time to do it and do it well.”

But there’s rea­son to be skep­ti­cal, as the orga­niz­ing chal­lenges that have dogged Fight for $15 are still at play.

While the orga­ni­za­tion achieved a $15 min­i­mum wage hike in New York State through a mas­sive mul­ti-year mobi­liza­tion, turnout at strike-day ral­lies was made up pre­dom­i­nant­ly of com­mu­ni­ty mem­bers. The first fast food strike, in Novem­ber 2012, saw an esti­mat­ed 200 work­ers in New York City walk off the job and, based on news reports, the move­ment peaked at 400 work­ers turn­ing out to strike. One can fair­ly assume a degree of over­es­ti­ma­tion in such num­bers, which were self-report­ed by Fight for $15. Par­tic­i­pants did risk retal­i­a­tion from man­age­ment, but they were not asked to con­tribute money.

Once fast food lead­ers talk to cowork­ers they could find inter­est is not there,” Figueroa said. We don’t know if it will work.”

Those very lead­ers are more san­guine. This is how we built Fight for $15,” Walk­er said. We orga­nized ourselves.”

We’re still fight­ing for what­ev­er it takes,” Cabral added. We are unstoppable.”

The sin­gle-day strike tac­tic began in New York before spread­ing to hun­dreds of oth­er cities and draw­ing in thou­sands of low-wage work­ers. A sim­i­lar fate may await this orga­ni­za­tion­al mod­el, which could begin its expan­sion with statewide leg­is­la­tion in Albany.

I would not be sur­prised in the future if that is an option,” Figueroa said. The con­di­tions for fast food work­ers are sim­i­lar everywhere.”

Licht­en­stein said this approach to orga­niz­ing work­ers could extend beyond fast food. It’s obvi­ous­ly a mod­el if it works for all sorts of low-wage indus­tries, which are rough­ly the same,” he said. It’s true in retail and big box stores — the next place it goes for sure.”

Appel­baum dis­agreed, say­ing, what we’re see­ing is that in fast food this leg­is­la­tion may be the right way to go. That does not mean it’s the right way to go in oth­er indus­tries.” He not­ed the suc­cess of RWD­SU orga­niz­ing retail work­ers in New York City, like the break­through at Zara, where over 1,000 work­ers union­ized last year. In fast food, where there is no real orga­ni­za­tion at this point any­where, the mod­el that was pro­posed makes sense,” he said.

The only place retail orga­niz­ing has vague­ly suc­ceed­ed is New York,” Licht­en­stein rebutted. In most places, it’s zero on non-gro­cery retail and big box­es. In Cal­i­for­nia or oth­er lib­er­al states one could see an ordi­nance passed that cre­at­ed such a mech­a­nism for retail in the whole state.”

The spread of this orga­ni­za­tion­al mod­el will like­ly depend on the polit­i­cal winds in large munic­i­pal­i­ties and states con­sid­er­ing adoption.

This shouldn’t be a left-wing or right-wing thing,” Fine said. Cer­tain­ly in pro­gres­sive cities it’s prob­a­bly going to be a lot eas­i­er. It shouldn’t be, but that’s the reality.”

The growth of the mod­el may prove a bell­wether of the strug­gle between pro-busi­ness Trump­ism and the labor resis­tance — both with­in and out­side the Demo­c­ra­t­ic par­ty — that has emerged in the after­math of November’s unex­pect­ed election.

But Cabral said the move­ment will endure, regard­less of who’s president.

Trump or not Trump, we’re going to keep fight­ing for what we work­ers deserve: a decent life and a decent salary.”

Max Zahn is a free­lance reporter in Brook­lyn, New York.
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