Workplace Gains beyond the Wagner Act: The New York Taxi Workers Alliance and Participation in Administrative Rulemaking

Introduction

Within North America, there is a growing interest in strategies aimed at increasing worker representation and building worker power outside of traditional collective bargaining frameworks and contract unionism (Cobble 2017). Broadly referred to as “alt labor,” new worker organizations (centers, alliances, networks) and innovative collective organizing strategies (direct action, legislative lobbying, and fair labor accreditation programs ¹ ) are being used extensively by nonstandard workers in sectors with low union density (Cobble 2017; Dias Abey 2017; Eidelson 2013; Fine 2006). This article contributes to the growing portfolio of alt-labor organizing strategies. Specifically, I examine the New York Taxi Workers Alliance’s (NYTWA) participation in administrative rulemaking as an avenue to improve working conditions and remuneration for independent contractors who labor outside of the collective bargaining framework.

Independent contractor status is a new and growing phenomenon in many sectors; however, this has been the employment condition of yellow cab drivers in New York City for over forty years (Hodges 2009). Independent contractors fall into the broad category of nonstandard and contingent workers. Nonstandard workers are broadly defined to include temporary workers, agency workers, day laborers, part-time employees, and independent contractors (International Labor Organization 2016). The number of U.S. workers who fall into this category has burgeoned over recent years and is now thought to comprise forty percent of the working population (Jeszeck 2015). Elsewhere, estimates on the pervasiveness of alternative work arrangements, including temporary help agency workers, on-call workers, and independent contractors or freelancers, find that the number of workers in these jobs grew nearly fifty percent between 2005 and 2015 and now comprise 15.8 percent of the population (Katz and Krueger 2016). In fact, it is estimated that ninety-four percent of net job growth that occurred between 2005 and 2015 was in the form of alternative work arrangements (Katz and Krueger 2016).

At times, hiring independent contractors signifies a shift in the organizational structure of a firm; however, labor advocates are concerned that employers are reclassifying employees as independent contractors as a cost-saving measure (Scholz 2017). By reclassifying employees as independent contractors, firms are able to shift cost and risk associated with employment away from the firm and on the shoulders of individual workers. This eliminates the possibility of formal worker unionization and leaves workers with fewer rights and protections such as no overtime provisions, unemployment, disability, or employer-provided health insurance (Kennedy and Torricelli 2000; Scholz 2017). Within New York City’s taxi industry, the reclassification of drivers as independent contractors ² amplifies the already precarious conditions that have historically characterized low-wage taxi work (Hodges 2009). Despite and as a result of these challenges, taxi drivers have been forced to develop collective organizing strategies suited to self-employed and nonstandard workers.

This reclassification of cab drivers is representative of broader changes in organizational work structures that have absolved employers of responsibility and made employment less stable and predictable. According to Cranford et al. (2005), the meaning of self-employment has changed greatly over the past fifty years. “In their employment situations, [independent contractors] differ dramatically from the ideal type of self-employed [worker], since they do not own much by way of means of production, exercise little control over production, and do not accumulate capital” (Cranford et al. 2005). Cranford’s observations are true for many New York yellow cab drivers. As independent contractors, the majority of drivers lease cars for over $100 per day, receive a percentage of the predetermined metered rates, and must operate vehicles according to strict regulations outlined by the city’s Taxi and Limousine Commission (TLC).

As independent contractors, cab drivers do not have the right to bargain collectively under the National Labor Relations Act; nonetheless, the industry has become a hot bed for collective labor action. The New York Taxi Workers’ Alliance was formed in 1998 and has since spearheaded organizing campaigns to improve working conditions for drivers in the largest U.S. taxicab market (Das Gupta 2006). A self-proclaimed union and the first affiliate of the American Federation of Labor–Congress of Industrial Organizations (AFL-CIO) representing nonstandard workers, NYTWA boasts a membership of over nineteen thousand drivers (New York Taxi Workers Alliance 2017). NYTWA aids drivers with a host of services related to individual licensing and non-work-related matters. These include Affordable Care Act registration, English Language classes for drivers and their families, and immigration referrals (Lindauer 2015). The group also maintains a vibrant organizing program and has been successful in achieving collective, citywide gains for all drivers. NYTWA’s strategy to achieve better working conditions for drivers has been multifaceted; however, many of their successes have resulted from participation in the administrative rulemaking process.

NYTWA has been an active participant in the rulemaking proceedings of the TLC, the regulatory body that oversees the for-hire vehicle industry in New York City. By working cooperatively with the TLC, NYTWA has been able to collectively represent drivers in negotiations concerning taximeter fare hikes and in the development and implementation of driving rules and regulations (Mathew 2008). Engagement with rulemaking processes and procedures has proven to be an innovative avenue for taxi drivers in New York to improve the terms and conditions of their work.

Utilizing archival material obtained from New York University’s Tamiment Labor Archives, transcripts from New York TLC hearings, and interviews with NYTWA staff conducted between 2014 and 2016, this article examines three attempts by NYTWA to improve the terms and conditions for yellow cab drivers in New York City via administrative rulemaking.

Drawing on the 2003/2004 taxicab fare increase, the Driver’s Bill or Rights, and the 2012-2014 health and benefits fund campaign, I argue that in the absence of a collective bargaining agreement, administrative rulemaking can provide a site for negotiation about the content and structure of work. These cases also demonstrate that participatory rulemaking can be an effective way to engage organization members and build collective voice. Although not all examples explored ultimately prove to be successful, the valuable insights offered by NYTWA may inspire independent contractors in other administratively overseen industries to pursue in rulemaking as a collective organizing strategy.

The TLC: Industry Governance and the Introduction of Leasing

Since 1971, the city’s TLC has been the regulatory body for New York City’s for-hire vehicle service (Hodges 2009; Ness 2010; Taxi and Limousine Commission 2017). Yellow taxicab medallions, the permits for the most iconic element of the city’s for-hire transportation system, total 13,587; more than 143,000 drivers hold licences that make them eligible to work as for-hire transportation drivers in New York City (Taxi and Limousine Commission 2016). On any given day, there are between 10,850 and 11,750 active yellow taxicabs on New York City streets providing more than four hundred rides to passengers (Taxi and Limousine Commission 2016).

The TLC oversees and monitors virtually every aspect of the cab industry. As an administrative agency, the TLC is responsible for developing and implementing industry rules and standards. Regulation is far sweeping and encompasses everything from industry licensing, to driver codes of conduct, to additional taxi-specific traffic rules that drivers must adhere to. As is true of many administrative agencies, the TLC’s tasks blend executive, juridical, and legislative functions (Bingham 2010). The agency’s primary executive function pertains to law enforcement under its jurisdiction where it oversees hundreds of enforcement agents to ensure compliance with the TLC rulebook.

The agency handles adjudication of claims, formerly under an independently run taxi tribunal and now as a prosecuting party in the Office of Administrative Trials and Hearings (OATH) court system for licensing violations and disciplinary purposes. With respect to this article, the TLC’s most important function is its quasi-legislative role in which it creates and interprets the administrative rules that oversee the sector.

A board of nine oversees the TLC, and the agency’s head chairs the group. All serving board members are appointed by the mayor and approved by city council; they serve a term of seven years and include representatives from each of New York’s five boroughs (Taxi and Limousine Commission 2016).

The TLC holds regularly scheduled public meetings where regulatory actions are discussed, public testimony is heard and action is taken by the Commission, base station license applications are approved, and agency staff delivers presentations on new and proposed policies, legislation, pilot programs and regulatory modifications. (Taxi and Limousine Commission 2016)

The TLC employs upward of six hundred people to execute its various functions (Taxi and Limousine Commission 2016).

To register a yellow taxi in New York City, one must have a medallion as well as a vehicle to affix it to. Although about one third of taxicabs are owned by drivers, ³ meaning that most yellow cab drivers in New York City have little to no ownership over the means of production required to perform their job (Van Zuylen-Wood 2015). Instead, drivers lease vehicles for twelve-hour shifts on a daily basis. ⁴ A maximum price that can be charged for the lease of a vehicle, commonly referred to as a lease cap, is included as part of the industry’s regulation.

Lease drivers can obtain a vehicle through multiple means. Typically, lease drivers will either lease a taxicab directly from another driver or through an agent (taxicab garage) who acts on behalf of a medallion owner to facilitate the operation of the permit. Medallions are controlled by a relatively small number of agents leading to a high concentration of power within the market. As of October 2017, New York City had only sixty-six registered agents (NYC Taxi and Limousine Commission 2017), and as recently as 2015, more than eight hundred medallions were held by one firm (Van Zuylen-Wood 2015). The current leasing system is a direct result of what has historically been one of the most influential decisions to come out of the TLC.

In 1979, the TLC legalized “horse-hiring,” or leasing, for drivers who do not own medallions. Prior to the introduction of leasing, drivers were considered to be employees of garages. Under the prior system, drivers were paid a wage, split taximeter earnings with the garage, and for some garages were even unionized (Hodges 2009). However, the introduction of leasing shifted risk squarely onto the shoulders of cab drivers. With the introduction of leasing, “Fleet owners [could] rent out cars for an assured income while shifting the costs of gasoline to the drivers—after their outlay, drivers kept whatever money they earned” (Hodges 2009, 146).

The political climate that led to leasing is well documented by scholars Biju Mathew and Graham Gao Hodges in their respective books on the New York City taxi industry (Hodges 2009; Mathew 2008). Although outside the purview of this article, some mention of the move to leasing is crucial as it laid the framework for contemporary employment relations in the industry and thus is a crucial factor in collective organizing strategies of current drivers. In addition, it is important to note that both scholars report that leasing was strongly supported by fleet owners, and observe strong historic ties between the TLC and taxicab garages and fleet owners (Hodges 2009; Mathew 2008).

Leasing ushered in a path to reclassify drivers as independent contractors. Although the TLC sanctioned leasing in the 1970s, the industry was slow to implement the practice, and the change in status was not ultimately solidified until 1999 in a case held before the New York Branch of the National Labor Relations Board (Green 1999). Raymond Green, the Administrative Law Judge who presided over the case, acknowledged that the lack of ownership and decision-making power drivers have over the terms and conditions of their work was atypical among self-employed workers. He conceded that taxi drivers did not possess the same benefits of small business owners. He writes,

they have no proprietary interest in the means by which they provide their services. For the most part they lease cabs on 12 hour shifts and by managing to stay out on the road for perhaps 11½ hours at a time, they may earn, with tips, an average of about $9 or $10 dollars per hour with no overtime pay. They receive no health insurance, no life insurance, and no other benefit for their labor.

Nonetheless and despite this demonstrated lack of worker control, Judge Green ultimately ruled that drivers ought to be considered independent contractors because once drivers are on the road, they are self-directed. Green’s decision reads,

the relationship between the fleet owners and the drivers is virtually devoid of control of the latter by the former. . . . The fleet is not at all interested in how the driver uses the vehicle during the terms of the lease except to the extent that the driver delivers it back in the same condition, and on time to the next lessee. This is because the fleet owner gets all his money from the driver and does not get a percentage of the fares, all of which are retained by the driver. (Green 1999)

Under the leasing system, the fleet owners have no incentive to exert control over cab drivers because their profits are secure; drivers, meanwhile, are forced to absorb any costs associated with the work.

Leasing has proven costly to everyone except fleets and garage owners. According to Schaller Consulting, founded by longtime New York City industry researcher and analyst Bruce Schaller,

the profound impacts of leasing and independent contractor status on drivers and the riding public are clear. While leasing resuscitated taxi fleets’ ailing health, drivers lost employee status and employee benefits, saw their overall compensation decline, and took on more of the financial risks of the taxi business. (Schaller Consulting 1999)

Other TLC rules have similarly favored fleet and garage owners over drivers.

Historic and contemporary collective organizing in the taxi industry seeks to balance this unequal economic relationship. Independent contractor status, underpinned by the leasing relationship, has been formative in shaping the strategies used to build worker voice and power. The NYTWA has demonstrated that participating in administrative rulemaking can be an effective avenue to advance the collective interests of yellow cab drivers.

Negotiated Rulemaking and the TLC

Collaborative governance includes a host of different practices that create avenues for various stakeholders to work together in conjunction with the state at the federal, state, local, or municipal level, on aspects of policy, oversight, regulation, and enforcement (Bingham 2010). Attempts to utilize collective governance practices have been far-reaching and are increasing in the era of big-data and technological innovation (Hart, Ulmer, and White 2015).

Participatory or negotiated rulemaking is a key collaborative governance practice for many administrative agencies. Most agencies, responsible for carrying out service functions or implementing legislation, have substantive ability to craft rules that are reasonably related to their statutory mandates (West 2005). Within the United States, agencies are able to make their own rules under a series of rulemaking procedures outlined by administrative law process. This allows agencies to capitalize on internal expertise. In addition, rulemaking often requires agencies to consult with various stakeholders affected by the rule; consultation with stakeholders encourages agencies to create viable procedures and policies necessary to fulfill their mandates (Susskind and McMahon 1985; West 2005). These participatory rulemaking principles underpin New York City’s TLC.

Public participation in administrative rulemaking (also known as negotiated rulemaking) is an inherently political process (West 2005). By incorporating key stakeholders, negotiated rulemaking has been thought to create more legitimate decisions (West 2005). Participation typically involves comment periods and hearing sessions (Hart, Ulmer, and White 2015). ⁵ However, the extent to which participants’ opinions are reflected in the final outcome of the process varies significantly, and stakeholders do not always participate equally. According to Coglianese (2006, 2015),

most agency rulemaking proceedings garner only a small number of comments—and in most rulemakings by far the largest number of these are submitted by businesses or other organized groups rather than by what might be considered ordinary members of the general public.

The growing use of social media and digital online spaces, however, present new and expanded opportunities for public participation in rulemaking proceedings that reach beyond traditional rulemaking participants like the businesses and business associations that Coglianese mentions. Technological innovation specifically has led to the development of protocols, research, and best practices for e-rulemaking in an effort to broaden participation in the process (Hart, Ulmer, and White 2015).

New York City has various mechanisms to encourage city stakeholders’ participation in governance including the opportunity to partake in negotiated rulemaking. Negotiated rulemaking provides NYTWA with an inroad to advance the interests of taxi drivers via administrative law. As an administrative agency, rules developed by the commission are governed by the Citywide Administrative Procedure Act (CAPA). CAPA permits,

Any person [to] petition an agency to consider the adoption of any rule. Within sixty days after the submission of a petition, the agency shall either deny such petition in writing, stating the reasons for denial, or state the agency’s intention to initiate rulemaking, by a specific date, concerning the subject of such petition. (New York City, n.d.) ⁶

The TLC is unique in that the rules it promulgates are closely linked to the terms and conditions of taxi driving work. Whereas most agency rulemaking efforts typically target broad “public interest” issues, the TLC maintains strict controls on labor oversight or workplace conduct. For this reason, collective organizing aimed at influencing rulemaking proceedings can lead to improved terms and conditions of work for New York taxi drivers.

NYTWA: The Voice of Drivers and an Industry Stakeholder

The NYTWA represents the interests of taxi drivers in New York City. The organization has relationships with more than nineteen thousand members who, since the alliance was founded, have either attended meetings or sought services. NYTWA was the first affiliate of the AFL-CIO that was comprised of nonstandard workers, and the group has a strong economic and class-based analysis. Although NYTWA does not hold any bargaining certificates, the group refers to itself as a union, and organizers often speak to members as “brothers and sisters,” a phrase common in the labor movement. It is funded primarily through membership dues, which, at $100 per year, are electively paid by drivers. NYTWA has also received grant funding to support outreach programs to assist drivers with things like Affordable Care Act enrollment.

Although legally classified as a nonprofit, NYTWA is well integrated into the labor movement and fits aptly under definition of “worker center” as described by Janice Fine (2006). Worker centers are a cornerstone of alt-labor organizing and have been deemed a decidedly new and relatively successful approach to engaging with nonrepresented, immigrant, and/or precarious workers. However, the extent to which these strategies are considered “new” may elucidate more the extent to which worker centers differ from industrial unionism, rather than signify a truly original approach to organizing (see, for example, Fine 2011; Fine and Gordon 2010; Freeman and Rogers 2002; Gordon 1995; Milkman 2013). Worker centers are characterized by strong rank-and-file membership and leadership, and often offer employment and non-employment-related assistance; however, they operate outside of the purview of the National Labor Relations Act and rarely lead to formal unionization campaigns (Rosenfeld 2006).

NYTWA’s primary objective is to protect and improve the livelihood of cab drivers in New York City. A key strategy to achieving this objective has been through petitioning for new rules and rule reforms that support drivers, and by helping drivers navigate existing statutes. A staff of eight consults with drivers about moving violations and parking tickets and refers drivers for legal counsel and representation as needed. This work is of crucial importance to drivers because maintaining proper licensing is a condition to work in the sector; ticket assistance constitutes much of the daily work conducted in NYTWA’s office.

As the collective voice for taxi drivers in New York City, NYTWA is an important industry stakeholder well positioned to participate in administrative rulemaking. NYTWA uses rulemaking to create collective voice and represent the interests of rank-and-file members. Much in the same way that unions typically conduct bargaining surveys, NYTWA circulates survey to members to determine and prioritize industry issues that are afflicting drivers prior to establishing rulemaking proposals. Drivers are encouraged to participate in surveys at general membership meetings, when they visit the office for service provision, in the field at popular taxi stands, at airport lots, and in garages where organizers and NYTWA member-leaders leaflet drivers conduct informal conversations about industry issues and trends. Although outreach is conducted for the purpose of determining campaign issues and to identify areas where rules might be proposed, the process in many ways emulates union outreach efforts conducted in anticipation of bargaining.

NYTWA has acted as a representative capacity to propose a host of TLC rules. Rules proposed by NYTWA attempt to return some of the economic risk associated with cab driving, to medallion owners, and alleviate the financial burden that has disproportionately fallen on drivers’ shoulders. In this way, rulemaking has been used by NYTWA to level the unequal power relationship between taxi drivers and fleet owners, to increase driver wages, and to expand workplace rights. Historically lowering the cost of the lease, and expanding and publicizing drivers’ rights, have been central tenants of these proposals.

Example 1: The 2003/2004 Campaign for Economic Justice for Drivers

In the winter of 2003 and spring of 2004, after years of stagnant metered rates, high lease prices, and amid rising gasoline prices, NYTWA proposed to instigate rulemaking as part of a campaign for Economic Justice (New York Taxi Workers Alliance 2003). NYTWA’s intimate understanding of the industry led the group to push simultaneously for fare increases and also for lease decreases to ensure that drivers would capture the benefit of a meter increase and not have to remit higher wages to fleet owners in the form of a lease payment. NYTWA’s petition read,

Taxi drivers’ incomes are determined by the fare they collect from metered bookings and their operating costs, both of which are regulated by the TLC. By maintaining low fares and high lease caps, the TLC continues to prevent drivers from earning an income which their labor deserves and families require. . . . A lease cap decrease is central to a fair and balanced industry. Without changes to the lease caps, drivers will not see the benefit of a fare increase.

1. Lower the lease caps and increase the fare rate;

2. Ensure that the benefit of the fare increase goes to the driver;

3. Adjust the fare rate and lease cap every two years to account for cost of living increases and cost of operations;

4. Enact temporary fuel surcharges to alleviate the burden on drivers’ daily incomes; and

5. Establish immediate responses to disasters and emergencies which may have a negative, long term impact on drivers. (New York Taxi Workers Alliance 2003)

Although NYTWA could freely petition the TLC to adopt new rules, the decision on whether to initiate rulemaking rests solely with the commission. For this reason, NYTWA has proposed rules in conjunction with other organizing and outreach strategies.

NYTWA’s 2003/2004 Economic Justice campaign and rulemaking petition was accompanied by a host of other outreach strategies and a demonstrated history of driver mobilization. City council members were canvassed, supporters signed a letter that was delivered to then mayor Michael Bloomburg, and rallies and press releases were held by NYTWA at city hall and elsewhere (New York Taxi Workers Alliance 2004). The Economic Justice campaign fell on the heels of other campaigns that demonstrated the power and unity of yellow cab drivers and organizing capacity of NYTWA. This included massive driver mobilization post-9/11 when NYTWA coordinated efforts that successfully resulted in drivers being able to access disaster funds made available to small business owners (Desai 2015), and a highly successful two-day historic citywide strike that was organized five years prior (Mathew 2008). When it came to the 1998 citywide strike, 80 percent of taxicabs participated resulting in a decline in street traffic of 75 percent (Prashad 1998). NYTWA’s ability to mobilize drivers provided the group with the leverage necessary to successfully petition for rulemaking and to engage with the city in negotiation over the terms and conditions of cab driving.

The TLC’s decision of whether to instigate rulemaking or not is final and is not subject to appeal or juridical review. Superficially this appears to differ substantially from the obligation of employers and labor boards to “bargain in good faith”; however, in practice, the erosion of worker laws has bestowed on employers the ability to propose and implement a “final offer” and walk away from the table (Dannin 2006). The “final offer” provision demonstrates how even within the union movement, worker power has been severely curtailed. For this reason, both within and outside of the traditional union movement, compelling employers and regulators to accept terms and conditions that align with worker interests relies on other forms of collective action.

Within the context of the Economic Justice campaign, NYTWA would do things like hold press conferences on the steps of city hall and to mobilize drivers to attend TLC meetings to show the visibility and solidarity of the workforce. The visibility of bright yellow taxicabs has also periodically been used, in the form of parades and caravans, to draw attention to drivers and their demands. NYTWA’ archives are full of flyers outlining their campaign demands and informing drivers about upcoming TLC hearings; these would be distributed at places where drivers congregated like taxi stands, leasing agents, and the airports.

The hours that drivers spend behind the wheel, however, can make attending protests and hearings difficult. For those who work at night, public events often occur when drivers would be sleeping. Drivers who work during the day would regularly be working at the time of meetings and demonstrations meaning that their attendance at protests would result in lost income. Nonetheless, participation endured. With respect to the 2003/2004 campaign, Biju Mathew, in testimony at a TLC meeting concerning the meter raise and lease caps, describes driver support by the numbers that attended. He states,

I want to point out to the Commissioners here that there is an overflow room which is packed with drivers, there are 50 to 70 drivers sitting there. And downstairs, outside of the building, there are still drivers trying to get into the building. (Mathew 2004)

In the 2003/ 2004 Economic Justice campaign, drivers again pressured the city to address their demands. News media and TLC hearings were used as platforms to make driver’s voices heard. According to a newspaper interview with taxi driver Bill Lindauer,

We are mad as hell. We will not take it anymore as we are living in a personal financial hell. The only people who cannot afford to ride cabs are the cab drivers. I accuse the city of policies that subsidize the rich and keep the cab drivers at poverty level. (Lakshman 2003)

Driver Kevin Fitzpatrick echoes these sentiments in his testimony at the TLC in support of the campaign,

It’s an unfortunate thing since the TLC has been set up, it has been on the cutting edge of labor costs, which means cutting labor salaries. Since the TLC has been set up, we know drivers who have lost pensions, they have lost health insurance, they have lost vacations. And what did we get? We got the wonderful system of recent. Now we have a medallion that was worth $15,000 in 1971, now it is worth over $300,000. Let me tell you, driver’s income hasn’t gone up 2000 percent. (Fitzpatrick 2004)

Although the 2003/2004 petition for rulemaking was successful, NYTWA’s phrasing of demands was broad and left significant discretion up to the TLC with regard to implementation. During this time, NYTWA worked hard to build a coalition of support from the public, city councilors, and driver-members that demonstrated the political power of the organization. When the TLC announced formal rule proposals regarding the metered rate, lease caps, and other aspects of their proposal, NYTWA responded accordingly,

We accept the proposed increase in base fare from $2.00 to $2.50; the increase in mileage calculation from 30 cents per one-fifth (1/5) mile to 40 cents per one-fifth mile; the addition of the rush hour surcharge of $1.00 from 4 p.m. to 8 p.m.; increase in the JFK Airport-Manhattan flat rate from $35 to $45; and the increase of $15 Newark Airport surcharge, up from the present $10. (Desai 2004)

The fare raise overwhelmingly went into the pockets of drivers and represented a huge success. Drivers saw 70 percent of the increase, compared with only 14 percent of previous increases; NYTWA organizing committee member and scholar Biju Matthew notes that this was the best split that drivers had won since 1967 (Mathew and Kumar 2008).

NYTWA’s endorsement of the metered rates, however, was accompanied by criticism of new forms of payment processing. Drivers were having to cover the processing fees of newly installed credit card machines, and lacked rules dictating how and when drivers would receive credit card monies, and a process for handling technological malfunction had yet to be determined. Without formalized rules, garages and fleet owners were given the power to unilaterally establish credit card processing practices. Bhairavi Desai, executive director of NYTWA, writes in response to the TLC’s announced “Proposal’s Under Consideration for Rulemaking” illustrates these shortcomings and calls for,

Establish a minimum requirement for credit card use similar to other small businesses; establish a process to allow drivers to collect credit card payments daily; [and] allow garage drivers to finish their shift before returning the car to the garage if the reader becomes inoperable. There is no real “credit” system offered by garages to compensate drivers for loss of time due to mechanical failures (or any other matter such as medical emergency or family crisis). The TLC’s proposed regulation places an unfair restriction on drivers in the context of the modern leasing system. (Desai 2004)

Over the course of the 2003 and 2004 rulemaking, a series of letters are exchanged between NYTWA and the TLC. Housed in the Tamiment Labor Archives, these letters are similar to what one might expect and hope from any labor negotiation process. Ultimately rulemaking resulted in various compromises that represented concrete gains for New York City cab drivers that are reflected in old TLC rulebooks; these include a rule absolving the driver from any lease payment obligations if the vehicle was unavailable for any reason, a capped fee that could be charged to drivers for use of credit card machines and processing, and a rule that mandated garages pay out drivers daily for credit card trips.

Example 2: The Driver’s Bill of Rights

In 2011, NYTWA proposed and supported a TLC rule that would require fleets to hang a poster in the workplace outlining a “Driver’s Bill of Rights” for New York City cab drivers. The Driver’s Bill of Rights was conceived by NYTWA and did not introduce any new rules; instead, it mandated posting of existing rules in clear and easily understandable language in every garage (United Taxi Workers of San Diego 2011). Since its inception, NYTWA has worked diligently to increase the legal consciousness of its members by producing educational materials. Informing workers of their rights is a strategy used by various collective labor organizations (Dias Abey 2017). When workers know their rights, they are more inclined to grieve workplace violations or, as Vanessa Tait demonstrates in countless examples, be active participants in collective organizing campaigns (Tait 2005). NYTWA pushed for the Driver’s Bill of Rights because educating drivers about TLC rules and regulations was a mechanism for driver empowerment. NYTWA executive director Bhairavi Desai stressed the importance of drivers understanding their rights in an industry where they have relatively few, stating,

We know that the relationship between drivers and the rest of the industry is one that is based on immaterial balance of power. For us what a bill of rights would do is simply, in simple language and plain view, express what rights already exist in the rulebook pertaining to taxi drivers. (Desai 2011)

The efficacy of the Bill of Rights as tool for education and empowerment was wholly contingent on drivers’ ability to clearly understand the document and the protections afforded to them. For this reason, NYTWA pushed for a bill written in plain and easily accessible language. Bhairavi Desai’s testimony in front of the TLC on the rule was as follows:

[For] a work force that is overworked, does not have access to all of the rule books and certainly [may not understand] all [of] the legalese within [them], [a Driver’s Bill of Rights would] make it know what our rights are, day-to-day. [For example,] things like the right to a receipt, the right to a contract, the right not to be overcharged in the lease, these are fundamental rights. (Desai 2011)

The rules included in the Driver’s Bill of Rights were rules and restrictions already in place. Because no new substance was introduced, NYTWA’s proposal received no pushback by the agency or other industry stakeholders. The proposed “Drivers Bill of Rights” used the same format as the “Passengers Bill of Rights,” which had been on the books since 1995 (Van Gelder 1995). NYTWA stressed the similarities between these two initiatives; drawing strong parallels also made for a noncontentious proposal. ⁷

In her testimony, Desai requested that NYTWA be provided an opportunity to provide written feedback that would simplify the language to ensure that drivers would easily understand it. The TLC ceded Desai’s request and moved to adopt the rule and institute the Bill of Rights. NYTWA has demonstrated to the TLC that it is well positioned to provide this type of input because of the demonstrations it organized and at TLC hearings where NYTWA staff is often accompanied by dozens of driver-members.

NYTWA’s participation in the Driver’s Bill of Rights rulemaking demonstrates how collective action can work to embed industry rules and regulations that improve the legal consciousness of workers. The Drivers Bill of Rights is now posted in every garage, and the TLC can issue a fine to garages who are noncompliant. As a result, lease drivers can see their rights clearly outlined at beginning and end of every shift. NYTWA staff feels that the Driver’s Bill of Rights is an important step in increasing the legal consciousness of drivers; the visible reminder of driver rights, and a more informed workforce also pressures garages to comply with the rules listed on the poster. According to former taxi driver and NYTWA organizer Javaid Tariq, these posters serve as a reminder “the garages have to follow the rules” (Tariq 2015). When rights are violated, the poster reminds drivers that they can file a complaint without retaliation (Desai 2011). In addition, NYTWA provides guidance to drivers wishing to file formal complaint with the city. Because NYTWA is well-known by drivers as a resource, the Driver’s Bill of Rights may also help with general worker organizing and to build worker power.

Example 3: The Benefits Fund

A 2015 U.S. Census Bureau press release on income and health coverage reports that of those who have health insurance, 55.4 percent received employment-based insurance, followed by 19.5 receiving Medicaid, 16 percent on Medicare, 14.6 percent who purchase insurance directly, and another 4.5 percent who are covered by military health care (U.S. Census Bureau 2015). For employed individuals working as drivers and chauffeurs in the New York and New Jersey metropolitan region, annual earnings are estimated at $34,000. This would make most drivers supporting a family of four eligible for Medicaid coverage (Occupational Employment Statistics 2017). Internal NYTWA research conducted in 2011 determined that among members, 40 percent were uninsured, and of those who did have coverage, more than two-thirds were on a public assistance plan (Milkman and Ott 2014).

For those on public assistance, Medicaid is a critical resource for drivers and their families seeking care; however, gaps in coverage exist, and for the working poor, these can be difficult to pay for out of pocket and can result in self-restriction regarding access to care services (see, for example, Gold, Sparer, and Chu 1996; Soumerai 2004; Steinman, Sands, and Covinsky 2001). In the words of Frederick Dsouza, in an interview held with local media during the campaign, even as a low income driver with health coverage provided by the government, coverage is limited. “Everything is not covered,” he said, adding he often buys medicine at the drug store instead of visiting a doctor (Kral).

In addition, as independent contractors, taxi drivers do not typically make contributions to other social welfare programs like unemployment or disability, as these benefits are typically employer provided (Harris and Krueger 2015). In the event that health-related conditions preclude drivers from working, they have no safety net to draw should they require some sort of short- or long-term income support. In the words of Bhairavi Desai,

When you face your own personal crisis, either due to illness or injury on the job or injury that keeps you working whether it’s on the job or not, the idea that you have nothing to fall back on is absolutely unconscionable. Workers’ compensation exists for only one segment of drivers, ⁸ owner-operators are not covered by it, and it’s a very dismal amount. And again, if you fall sick or injured outside of the job that coverage does not insure you. We desperately need this health and disability fund. (Desai 2012a)

The proliferation of independent contractor status and changing labor markets has resulted in a vibrant discussion about how to improve access to benefits and ensure that workers are covered. In light of the growing gig and online platform-based work, tech leaders, start-up companies, and unions have called for a restructuring in the way that benefits are delivered. ⁹ The idea of portable benefits has been presented as a concept that would allow nonstandard workers to access benefits as they move between various jobs. While there is a consensus that portability would be beneficial to workers, government implementation of universal coverage is unlikely. Instead, the most straightforward proposals suggest workers would bear the costs associated with these measures, meanwhile others explore opportunities for pro-rated company or employer contributions (Auguste et al. 2015; Horowitz 2016; Kamdar 2016).

NYTWA sought to address the issue of a benefits gap for drivers through a long campaign to institute a health and disability fund to provided expanded care coverage for industry drivers. To achieve this, NYTWA again turned to administrative rulemaking to create and institutionalize the fund.

As independent contractors, the proposed benefits plan would have to be driver funded; so as not to negatively affect driver’s wages at that point in time, NYTWA put forward a petition for rulemaking that would increase the meter rate while holding the lease cap steady. From the proposed fare increase, six cents per ride would be remitted to a benefits fund for yellow cab drivers. This way drivers would see a take-home wage increase and, for the first time since being reclassified as independent contractors, job-related benefits. This fund would cover a disability fund; preventive and wellness services; expanded coverage for prescriptions, mental health; rehabilitation services; life insurance; a vision, dental, and hearing plan; and more (Desai 2014).

Many drivers saw the benefits and security that the fund would bring as an important step forward and allow drivers to take time away from work when they were not well enough to drive. For example, the New York Daily ran a profile piece on Beresford Simmons, a cab driver in his sixties who suffers from perpetual health concerns. Financially set back by various ailments, Simmons detailed how in his mid-sixties, “I’m supposed to be retiring but I can’t stop working” (Donohue 2013). Similarly, driver Harminder Singh described how he continued to work even though his doctor advised that his job was not good for his health. Singh recalls his doctor telling him, “You know your work is no good, I think [your kidney ailments] are coming from your job.” Sing responded that “I cannot stay home” and continued to drive until he landed in the hospital (DePillis 2014). News articles reporting on taxi protests mention demands for health benefits as early as the late 1990s (Sengupta 1997); however, the demand did not gain political traction until it was heard inside the TLC boardroom.

The petition for rulemaking was first heard at a TLC meeting held in May of 2012. An emotional presentation from Desai describes tragic stories: drivers with limbs amputated after accidents on the job, drivers returning to the wheel following chemotherapy treatments, and attempts to console the children of a driver who were worried about funeral costs after their father was murdered while working. Personal stories are complimented by industry facts that document a host of factors that had driven down take-home pay. These include increases in the price of gas, credit card fees, garages overcharging drivers’ taxicab leases, and decreasing tips that were attributed to increases in other city-related taxes collected via the fare. ¹⁰ During the rulemaking proposal presentation, Desai navigated a host of questions about cost increases in the industry, pushed for a 15 percent minimum fare increase, and left the TLC board with the following thought:

We need to have a system that, first of all, recognizes that a working person’s right to a quality of life is a policy matter. And it is a policy matter that must be addressed by the TLC as the regulatory industry. (Desai 2012b)

By July, the TLC has reviewed the NYTWA’s fare increase proposal and conducted its own research on the proposal’s merits and had scheduled another meeting. Prior to the start of the meeting, a rally was held outside of the TLC office with three or four dozen drivers that was covered by local media (Kral 2012). Armed with megaphones and banners, the group chanted, “raise the fare, we want health care!” “TLC do the right thing”, and “the drivers united will never be defeated.” Video of the protest then announces that the hearing is about to start, at which point all drivers move inside (New York Taxi Workers Alliance 2012).

On the day of the benefits fund hearing, the TLC hearing room was packed wall to wall with drivers. A presentation by Ashwini Chhabra, Deputy Commissioner for Policy at the TLC found,

based on our review of driver income data announced from the electronic fare data we collect on each taxi trip and our review of changes to driver expenses since the last fare increase in 2006, we prepared the typical driver income statement. What this review demonstrates is that as a result of increase gas prices of 45 percent since 2006, the 5 percent credit card processing fee which was instituted in 2008 and other cost increases, drivers are making approximately 15 percent less today than they made in 2006 with noninflation adjustments. . . . after accounting for inflation, driver income has actually decreased 24 percent in real dollars. (Chhabra 2012)

With the meter increase secured, the TLC put forward a subsequent fare reduction rule to deduct the six cents for the fund. This proposal proved less political and successfully passed. The fund was to be administered by a third party. A formal request for proposals was made, bids reviewed, and it was determined that NYTWA would administer the fund. Mischa Gaus, writing about NYTWA’s achievements, cites the Benefits Fund as NYTWA’s largest win. He writes, “with unmet need so high, the alliance is confident that offering this key benefit to thousands of workers excluded from job-based benefits will cement its reputation among drivers and provide a basis for fiscal independence” (Gaus 2014). Gaus’ prediction was partially correct; the benefits fund welcomed by the drivers and NYTWA foresaw the income it would receive from administrating the fund as a mechanism to provide financial stability to the organization. This, however, is where the story turns south, and where the limits of participatory rulemaking are revealed.

A handful of drivers brought a case against the city and the TLC contending that the agency had exceeded its mandate by deducting six cents from drivers to finance a benefit fund, and argued that the fund was arbitrary and capricious. The TLC objected to the accusations, and responded that the fund “will benefit not only the drivers but also the public because it would [minimize] any future fare increase needed to cover drivers’ rising health and disability costs.” In addition, the TLC agued this was well within the agency mandate as, “the Legislature has delegated regulatory authority to [it] as it has the specialized knowledge and expertise to deal with matters of health and safety concerning taxi drivers” (Respondents’ Memo of Law in Opp to Ahmed Petition, pp. 11, cited in Chan 2014). Maintaining a healthy workforce was in the interest of the public and of drivers, concerns well within the mandate of the TLC.

The decision, however, was unfavorable for NYTWA and the benefits fund. Margaret Chan, the presiding judge, was ruthless. Stating that her “court was not bound by the dicta of another count of equal jurisdiction,” Chan dismissed the TLC’s claims and past court rulings that it was the appropriate agency to promulgate rules related to health and safety concerning taxi drivers. Instead, she cited TLC rules that appear elsewhere in the rulebook that required drivers to be of sound health. With little consideration for the dangers associated with the profession of cab driving, Chan (2014) concluded, “if a taxi driver has disabilities that would deny [them] from obtaining a taxi driver’s license, then it begs the question of why they are on the road in the first place. Perhaps a required annual check-up can speak better to that” (Chan 2014). Her statements are clear: taxi drivers in need of health care should find another job, and taxi drivers who face injury are on their own. After exhausting appeals, the benefits fund was abolished, and all monies collected from drivers were returned.

Conclusion

NYTWA’s ongoing involvement in rulemaking improved the terms and conditions of taxi driving work and helped to level the playing field between drivers and garages and fleet owners. As evidenced by the NYTWA, participation in rulemaking holds significant potential for other independent contractors working in industries where the terms and conditions of work are highly regulated by administrative agencies and administrative law; these could include industries like fishing where small independent business owners similarly navigate a complex web of regulation and rules. As demonstrated by NYTWA’s campaign for economic justice and a drivers’ bill of rights, rulemaking can help independent workers without an employer-employee relationship to build collective voice, to fight for economic gains, and can provide an avenue to change the power dynamics.

The participatory nature of administrative rulemaking also lends well to campaign building. NYTWA has been able to propose rules, attend and testify at public hearings about the proposals, and mobilize drivers in support of these initiatives. For an “alt labor” organization that operates without formal union recognition agreement, NYTWA has had to earn its place by proving that it is the collective voice for drivers in New York City; in this context, campaigning and driver mobilization has been key.

Collective determination about rule content can provide a unique opportunity for workers to build collective voice. The process of determining rulemaking priorities as demonstrated by NYTWA is heavily reliant on input from drivers. Rulemaking can become a process that facilitates negotiation and compromise as drivers work together to draft initial proposals and with other industry stakeholders throughout the input and hearing processes; workers can be involved throughout. It should be noted, however, that in the taxi industry—as would be the case in many industries, that the state has long-aligned itself with capital interests. It has only been through the persistent collective action of workers under the banner of NYTWA, exemplified by historic job actions such as the 1998 strike or the more recent 2017 airport strikes in response to Trump’s anti-Muslim ban (Orlove 2017), that NYTWA has been able to advance the interests of drivers through these formalized channels.

NYTWA’s strategy of using administrative rulemaking has recently been replicated by other organizations seeking to collectively represent other for-hire vehicle drivers. In particular, the TLC’s newly mandated tipping option requires that such a function be added to all transportation networking company apps (such as Uber and Lyft). Requiring apps to offer a tipping option resulted from rulemaking proceedings that were spearheaded by the Independent Drivers Guild (IDG), an affiliate of the International Association of Machinists and Aerospace Workers (IAM).

The IDG asserts that it represents fifty thousand New York City TLC-Licensed Uber drivers (IDG 2017). In exploring possible mechanisms to bring collective voice and bargaining to workers in the gig economy, Johnston and Land-Kazlauskas (2018) describe the functions of the IDG:

After discussions between IAM and Uber, what resulted was a five-year neutrality and recognition agreement, giving rise to a number of benefits, including a regular dialogue with local management. ¹¹ [In the words of IAM organizer Ryan Price] “We are building a union—without collective bargaining—but we function like an organizing union.”

Johnston and Land-Kazlauskas explore the possibilities that arise for building worker voice and collective representation through the voluntary recognition agreement that Uber and IAM have reached. Arguably, one of the biggest advantages that this model has is that Uber provides the IDG (2017) with access to its pool of drivers as well as to the company through a formalized works council where drivers can bring demands and voice concerns. However, when IDG took drivers’ requests for a tipping option to Uber directly, they returned empty handed thereby raising questions about the efficacy of the works council. As a result and following in the footsteps of NYTWA, IDG turned its attention to the TLC. The group collected eleven thousand driver signatures in support of a mandated tipping option for smartphone applications, and managed to achieve a win through administrative rulemaking (IDG 2017a, IDG 2017b.). In the for-hire driving industry, where taxi drivers are often pitted against Transportation Network Company (TNC) drivers resulting in downward pressure on fares and working conditions, these types of gains are important as they can help lift the bar for all workers and avoid what might otherwise become an economic race to the bottom.

There are, however, limits to participatory rulemaking. Specifically, for workers to make gains through this avenue, administrative agencies must be willing to entertain proposals put forth by organizations such as NYTWA. Agencies may be more compelled to entertain rulemaking petitions when rulemaking is underpinned by a multistrategy broad-based campaign. The other crucial limit of this strategy is that rules made through this participatory process must fall clearly within the mandate of the overseeing agency. In the case of the Benefit’s Fund, NYTWA’s experience also serves as an important reminder that even if the agency targeted for rulemaking is appropriate (as TLC contended it was), rules can be contested through the courts and that valiant efforts of workers and organizers can be dismantled by antiworker judiciary. As an increasing number of workers are being reclassified as independent contractors, and unionization rates continue to decline, the labor movement must seek new ways of engaging with workers. The purpose of evaluating and studying alt-labor organizing strategies ought not to be for the purpose of discovering the best or most functional approach to organizing independent contractors (or even taxi workers for that matter). Instead, discussions of alt-labor organizing should add to the growing toolbox of strategies available to workers who are excluded from the traditional union model but interested in collective representation. As unions and workers develop new approaches and identify new sites for negotiation and new avenues for collective representation, ensuring enforceability for worker gains is paramount. As evidenced by NYTWA’s gains, administrative rulemaking points to a hopeful way forward to achieve better terms and conditions for nonstandard workers.