Hopefully, the unions will not lie down and meekly accept yesterday’s Court of Appeal ruling on the employment status of support worker Janet Lowe. As many as 35,000 home care workers stand to be affected by yesterday’s ruling – in which the appellate court declared that these workers (who provide relief in homes to family members looking after sick or aged relatives) are not technically ‘employees” and thus do not qualify for the minimum wage of $14.25. As a result, the remuneration for people doing this essential and often unpleasant work will revert to being regarded as a mere “ subsidy”. Typically, this means that they can legally end up being paid only $75 for a 24 hour shift, or about $3 an hour.
The Court of Appeal decision has overturned a previous Employment Court decision that had found in Lowe’s favour.
The issues surrounded whether Ms Lowe was a “homeworker” employed by the Ministry of Health and Capital and Coast District Health Board. Three justices agreed that she was not an employee, noting that neither appellant had any role in selecting the relief carer. “The full time carer would be free, for example, to select an organisation such as a rest home provider rather than an individual like Ms Lowe,” they said. They also found Ms Lowe had a degree of autonomy in her role, inconsistent with that of an employee and to classify her as such would have broader ramifications.
So, since the full time carer can – theoretically – select someone else to do the work and since – also theoretically – the likes of Ms Lowe can choose or not choose to accept the conditions, then the health system can evade any responsibility for ensuring that these relief workers (who make homecare a viable option) get paid even the minimum wage for their efforts. Welcome to the ‘contract’ economy where the poorly paid with no job security can be freely exploited, because they happen to fall through the cracks of what is, or isn’t an “ employee’ as opposed to an “independent contractor.” After all, as the Court of Appeal indicated, we wouldn’t want employers – or in this case, the government – to be required by the courts to face up to the ‘broader ramifications’ of actually paying homecare relief workers the minimum wage for the vital work they do. One can only hope the unions can afford to take this outrage to the Supreme Court.
Voting rights, upheld
Talking of the legal system… in recent weeks, the US appellate courts have delivered a series of smashing victories that will protect the right to vote of poor, black and Hispanic Americans in November’s presidential election.
That’s very bad news for Donald Trump. Essential background: one of the most significant victories of the US civil rights movement was the Voting Rights Act of 1965, which knocked down administrative hurdles to black voting dating back to the 19th century. In 2013 however, the conservative majority on the US Supreme Court scrapped a key federal oversight provision of the 1965 act and – almost immediately – several similarly conservative states quickly re-erected voter registration barriers and fashioned devices to reduce voter turnout among the poor, African-Americans and Latinos, on the explicit understanding that these communities disproportionately vote for Democrats.
Thankfully, courts in Texas, North Carolina and Kansas have now struck down many of these new, discriminatory requirements. Basically, those states had used the Supreme Court loophole to put in place strict and racially discriminatory photo ID rules for registration and voting, while at the same time reducing and/or eliminating the early registration and early voting provisions that have long been crucial to the Democratic Party voter turnout. In North Carolina for instance, being able to vote on the two Sundays before the official poll had enabled local churches to conduct ‘ souls to the polls’ voting drives among their congregations, otherwise too poor to afford the transport to register and/or travel to the polls on election day. The Texas ruling is of crucial importance, as the Brennan Center has pointed out here, since it will restore the voting rights of some 600,000 people in Texas who stood to be disenfranchised by the photo ID change alone.
Furthermore… the North Carolina appellate court decision happens to be a brilliantly argued, beautifully written history lesson about racial politics in the South, and it bristles with a barely restrained judicial anger that makes it a compelling read:
Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.
Voting in North Carolina, as the appellate court noted (p.38) has been racially polarised for many years, thus creating a political motivation for voter dilution measures by its conservative state legislature. Some 85% of black voters voted for John Kerry in 2004, and 95% voted for President Obama in 2008. In stark contrast, only 27% of white North Carolinians voted for Kerry, and only 35% for Obama. Against this backdrop of racial polarisation, the appellate court went on to argue :
The State then elaborated on its justification [for scrapping one of the days on which Sunday voting was allowed.] explaining that “counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic”. Thus, in what comes as close to a smoking gun as we are likely to see in modern times, the State’s very justification for a challenged statute hinges explicitly on race — specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise…..The record makes clear that the historical origin of the challenged provisions in this statute is not the innocuous back-and-forth of routine partisan struggle that the State suggests, and that the district court accepted. Rather, the [North Carolina] General Assembly enacted them in the immediate aftermath of unprecedented African American voter participation in a state with a troubled racial history and racially polarized voting. The district court clearly erred in ignoring or dismissing this historical background evidence, all of which supports a finding of discriminatory intent.
Also, and with respect to the new photo IDs, the appellate court was just as fiercely unimpressed:
The General Assembly completely revised the list of acceptable photo IDs, removing from the list the IDs held disproportionately by African Americans, but retaining those disproportionately held by whites.
In sum, the North Carolina appellate court found that the state legislature had adopted voting laws that targeted African-Americans “with almost surgical precision.” It therefore overturned the provisions to do with photo ID requirements and also the changes to early voting, same-day registration, out-of-precinct voting, and pre-registration. The wider lesson? “The appellate court [in Texas] got it right, recognizing the stink of discrimination,” said Texas legislator Trey Martinez Fischer…. “Moving forward, however, we cannot rely on the courts to protect our voting rights. Certain states, including Texas, have demonstrated that they will not relent in their fight against unfettered access to the ballot box for all Americans. Whatever procedural course this case follows, Congress must act to restore the Voting Rights Act to put an end to the increasingly subtle and sinister efforts to disenfranchise those who challenge the status quo.”
Exactly. Just as in New Zealand, where – if the likes of Janet Lowe and other homecare relief workers are to have any justice – the Key government similarly has to come to the party, recognise the value of what Lowe and thousands of people like her do every day, and ensured they get paid accordingly.
Hard to believe, but it is now ten years (!) since Clap Your Hands Say Yeah released their best selling debut collection of country inflected, emo-driven melodies. Offhand, the terrific new album Cardinal by the young New Jersey band Pinegrove reminds me a lot of Clap Your Hands’ brief turn in the spotlight. Lead singer Stephen Hall is the band’s chief talent & driving force, and the album is emotionally book-ended by these two tracks “ New Friends” and “Old Friends….”