The Visitor

I remember when you first came calling,

I staved off our little game.

Not in good form, I bet you thought.

You will remember that I hid inside an eggshell. Then in a tea-cup. Then in a tiny replica of a ginger-bread house.

Hoping that to be oblivious was the same as invisible.

You indulged me, and picked another play-mate.

He went with you gladly, white hair gleaming, with eyes not quite muddy-not quite grey.

It had been a few years since, then

We had some chance encounters. You and I. A bus conductor, a young man just married, a famous poet laureate.

Me, as yet an unwilling chess player, you patient, forbearing, eternal.

Was I aware that you were as inevitable as taxes?

Your shadow in the valley of my soul, stealing forth.

I wasn’t afraid. I wrestled you. I fought.

Mildew spread here and there, with his friend shadow.

You sent fear in to conquer what was left.

A heart, left fallow.

I found better places to hide. Sun-flower fields, the tops of a Krishnachuda.

A small tried up petal, a tear and snot soaked handkerchief.

My legs shook with the effort of finding corners in little sandalwood-boxes, leather sachets, and make up bottles.

You showed no sign of tiring.

Today, you are my friend. Having hidden enough I come out to greet you.

I have stale biscuits and some tea.

The corners of the cup are chipped. The ceiling fan creaks.

You don’t mind I am sure…

It will be a very small game of chess.

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On adopting a dog, de-politicizing self and the question of P G Woodhouse.

Ok, I have been remiss in my duties as a blogger. Why?

Excuses excuses. That is really not the right note to begin a blog on. I have, however, recently found dog. That is, I am now the personal butler of a very adorable Chihuahua named Chirkut. (Picture enclosed). My north Indian readers may be surprised at the choice of name, because it isn’t very flattering in the North Indian context. However, Chirkut means a little slip of paper to Bengalis and that is what she was named after. While she is a delight in every way, what with the running around trying to catch her, the naps, the trips to the vet and plotting world domination with her, I have not had time to.. well.. write a post, as it were. For reasons to be explained later, I have taken to speaking liked a gentleman English dandy. (re Woodhouse, I am very impressionable).

Then there is the matter of verb conjugation in French. But we shall get to it later, after the dog question has been dealt with in detail. While I have always wanted a dog, I did not quite anticipate what it would make me feel to actually have one. The feeling of having a tiny little blighter depend on you entirely is kind of scary. But once the fear has worn of, it is a very rewarding experience. It is also a natural cure for the blues, and keeps one of one’s toes.

The other thing that has been keeping me on my toes, are the French lessons. Now let us acknowledge at the outset that anyone who can speak French sounds cool. No matter what they are like. It is a fact. The mere speaking of French can ‘shine a turd’ as they say. That is not, however, why I have been learning the language. Come September, this blogger, shall be heading off to Geneva for a three moth internship. I hope to see a bit of Europe while I am at it. Now I am kind of stoked about Europe, because a lot of the things I like came from there. (Mostly in the shape of ideas). I remember when I was little, I read a book about an American girl called Katy, who took a tour of Europe. Since then I have had a fascination for Venetian gondolas, the beaches of Nice, the streets of London and Paris. I shall, however, be taking a different trajectory and hope to glimpse Amsterdam and some of Germany. But those are castles in the air, and right now I am faced with the unenviable task of conjugating irregular verbs in French.

Languages have a strange power, irrespective of whether you speak them well or ill. They let you reach into a person and form an intimacy that would have been impossible if you did not speak their mother tongue. You absorb the history and culture of a place better if you have learned even a bit of the language. So in that those who urge the importance of Indian languages are right. Our generation is too steeped in its adulation of English, and in uprooting itself from its several mother tongues, is getting uprooted from a rich cultural life. I just have a problem when Hindi is posed as a solution to this cultural de-contextualization. But that gets me to the bane of my existence.

Did you notice how just when we were discussing travel, and my adorable Chihuahua pup, the political question raised its head. ‘The personal is political’ has been said, and yes, to me politics (not in the narrow sense of which party is less horrid, but in the broader sense of how society is ordered and organized, and how it ought to be) is a way of life. Hence, to me, most questions are political. Sometimes you can distill the political from the legal, and consider only the latter, but there it is, the P word. But sometimes I wonder if a person pondering politics (pardon the alliteration) is a happy person? When I see that the discourse around us has been reduced to either ignorant blithering or one-liners intended for one-upmanship, I wonder if an existence in which I scarcely contemplated the political would be a happy one. Or perhaps, books are the best conversationalists. Now if I have readers who have carefully followed me to this point, I would ask you to buy or borrow ‘India after Gandhi’ by Ramchandra Guha. Amazon (the otherwise usually irreproachable amazon) has bungled my order but it shall be getting here soon. Maybe I will do a review after reading it. I hear it is quite amazing.

But speaking of books, and I will wrap up after this, I must tell you a quick about your dear blogger. (Now to those who will accuse me of megalomania in referring to myself this way, I say, I am quite dear to those twenty odd people following me.) I had never ever read P G Woodhouse till 7/18/2015. Can you believe that? And no, I am not terribly ignorant, I just felt my nerves would not be able to take all those things going wrong. And was I wrong or was I wrong? I have corrected the state of affairs by purchasing a Jeeves omnibus. Spending all my free time reading the adventures of Messers Wooster and Jeeves has got me speaking this way. Hopefully, it won’t last. The next post, understandably, will take a while. As Bertie Wooster would say! Tinker-tonk!!

‘One Part Woman’: A Book review of a heartbreaking book and some impressions on the pain of dissent in India

I really have to work on those long titles.

Dissent is not dead in India. It exists and is robust. It pops up often like a hard to remove carbuncle on a vain person’s nose, in the middle of summer. However, dissent in India is painful. Kind of like that carbuncle. Some would argue that it should be. Would dissent really be dissent if it was convenient? But we shall return to this theme later. Right now I want to tell you about ‘One part woman’.

‘One Part Woman’ is a book written by author Perumal Murugan, a well known Tamil writer and poet. The reason I ordered this book, was that I wanted to take my own personal revenge on fundamentalists.But the book came to mean much more to me.

You see, Perumal Murugan was hounded by fundamentalist groups who protested his portrayal of certain practices that took place in relation to the Ardhanareeshwar temple in Tiruchengode. For my non-Indian readers, Ardhanareeswar is an androgynous form of the God Shiva and the Goddess Parvati. Ardhanareeswar is depicted as half-male and half-female, spit down the middle, and can be considered to be the ‘perfect being’ due to the balance of the male and female elements. The ancient practice, described in the book, that stirred up a hornet’s nest was that of ‘Gods’  having sex with women who desired to have a child. This practice took place on the 14th day of a famed Chariot festival in Thiruchengode. Of course, there were no ‘Gods’ that were impregnating the women, but the mere mortals from that area. But the practice, in the guise of divinity, had everyone’s approval.

The protests by the fundamentalist groups, who were incensed at the portrayal of the practice, were successful. The author decided to not write anymore.

“Perumal Murugan the writer is dead. As he is no God, he is not going to resurrect himself. He also has no faith in rebirth. An ordinary teacher, he will live as P. Murugan. Leave him alone,”  He said.

In those words I can sense his pique and anger. But it is a pity that Perumal Murugan the writer is dead. Because his book is breathtaking. I bought this book as my own personal act of dissent, sitting in faraway South Bend, Indiana (unsure of what it would be like and what it was about).

The book tells the story of a childless couple Kali and Ponna, who are deeply in love. But they are constantly reminded of what they lack, by everyone around them. Ponna is considered barren and inauspicious, while Kali’s manhood is doubted on every occasion.  Things go on this way, till Ponna is pressured to go to the festival on the fourteenth day, to get the gift of a child from Gods. Does she agree? I will not giveaway anything here, because that is not really the point of a review.

What is remarkable about the book, is that despite its piercing and acute social commentary, on gender, women’s rights, caste, and masculinity, it remains a book about love. Murugan provides insights about a love that can only be born of years of knowing each other, burrowing into one another’s bodies. He describes longing and desperation in a couple in far away Thiruchengode with a universality that can touch cords in people everywhere. He describes in painstaking detail all the things that the couple do to please the Gods. The endless sacrifices, the penances, the sinking feeling when Ponna’s period comes with clockwork regularity every month.

Kali and Ponna could be any other couple, in another context, trying to attain what is unattainable.  And haven’t we all been there. Running after a scorecard, or a waistline, a salary, or love (depending on what your poison is). We have all had the crippling anxiety that makes us forget to live in the moment, and be prepared to make sacrifices before an unyielding idol. We have all allowed others to determine what makes us happy. That cruel master: social approval.

The author also uses a portia tree as a beautiful metaphor for the relationship between the couple. The tree is a source of cool shade, support, and when times are bad, a sinister menacing presence. As we turn a page we hope that the couple will find peace, will be able to live in the bubble of their love, without worrying about not having a child. Out of every page in the book there emerges a sort of lyricism, that enchants you and ultimately leaves you heartbroken.

But what left me more heartbroken was the fact that ultimately, a bunch of people who do not have any appreciation of art won. What sort of a person does it take, to read something so delightful and heart wrenching and then say that I shall have it banned? What left me the saddest was Perumal Murugan ‘the author’ is dead, though P Murugan the man lives. I always had an idea of my country in my head, and it was never one where fundamentalists thrive and authors hide.

I was asked at a dinner party in the United States, to name the one thing I loved and hated the most about America. I made up some polite sounding bullshit. But what I took away from living there was a sense of freedom. I know that not everyone enjoys that freedom to the same extent, and America (like any other nation) has insidious divisions. But I remembered the sense of freedom with which I could express myself there, and think. Nuance, that elusive thing, hovered in and out of discussions. Perhaps it was the university environment, but the sense of freedom was like coming up for air. Now I feel that I shall have to spend my entire life, unlearning that. That every expression of a contrarian view will be a struggle. The recent spate of bans does not make me any more confident. But I may be wrong. Are most of our universities still centers of intellectual curiosity (I know some are)? Is a divergence of views respected? Have you, dear reader, enjoyed an academic and cultural environment where you learnt to dissent, to question? Can we be a nation where authors can thrive, and fundamentalists respect their space to do so? ( In their defense, they would not be very good fundamentalists if they did so). Leave your views in comments below, and don’t forget to read this book.

For the love of the Blue one: or an unlikely girl writing about faith

Dear Reader,

I am writing a story here. But then, it is not really a story. Because nothing quite happens, and you do most of the work. But you can stay you know. I can promise it will be good. The veracity of the promise?

I don’t know.

(Also, Kiran Nagarkar has used the phrase ‘the blue one’ for Krishna in his Novel Cuckold, but that is the only similarity here. Just wanted to make sure I was clear on where the name came from.)

So she was curled up in a fetal position, in the pitch dark of the night. Utterly and completely alone. Was she crying? Well, from the dirt on her face, and the quietness in her body, you could imagine that she had just finished crying for a long long time.

What was wrong with her?

Whatever you want. She is your mirror today. Your insecurities. Your deep feeling of loss. Your sense of inadequacy. Your fear of rejection.

That traumatic incident which happened many years ago. That broken home. Violence. That flaming row. The loss of a loved one. That insensitive friend. Those jungles cut down. All the things that burn you like spent embers not yet quite cold. The fierce force of a life that  will not quit.

Project that on to her. That was what was wrong.

She is all of us in that moment, anyone and everyone.

The night is pitch dark, and the walls a pleasant cream. Funny, you would think the walls would be a more depressing color. The ceiling flat. Like pain. Boxed in, all of us. Unable at that moment to escape the prison of our lives, and box-like apartments.

She remembered a story from long a ago.. A story of a boy who used to be afraid of setting out in the dark forest. Was the forest dangerous? Or was it just his imagination? I don’t know. But he had to cross the forest to get to school. He was one of those boys you find in fables like these. (and this is a real fable from my childhood, mind you. This is not something I made up, though I am taking liberties with the retelling.) He was good, and poor. And always listened to his mother.

So he told his mother that he was afraid of the dark forest, and asked for her help. The mother was widowed, and had her own work to do. She could not really chaperon her son. So she said, if you are ever afraid in the forest, call Madhusudan. (for non-Indians, Madhusudan is another name for the Hindu God Krishna). He lives there. He will help you get across the darkness.

Now this story would be much less exciting if she had said Hanuman (or more exciting, depending on your perspective). Hanuman would probably just uproot the school and move it over to near his home. Anyway, she said Madhusudan. So that is that.

The next day our nameless protagonist went into the forest, he called out to Madhusudan. “Madhusudan Dada (brother in Bengali), where are you?”.  Lo and behold, there were soft footfalls behind him. There stood a man so marvelously blue. So delightedly, wholeheartedly committed to his blueness. With curly kinky hair, and a peacock feather tucked in behind his ears. He was wearing something yellow that certainly could not be found in Big Bazaar’s mega sale. And in his hand was a flute.

You are a musician? The boy asked? Madhusudan Dada smiled, and put the flute to his lips and played sound. He played color. He played the first song the first Koel would have sung. He played the feeling that you get when you smell the fresh earth. He played melancholy, and affection (he did not play love, because few have survived to tell the tale). As he played, he moved, swaying with the wind. He was the darkness, but luminously so. This was the Krishna of Vrindavan. The Krishna on whom Radha had staked her claim. The God, who was so Godly because he was possessed and owned by his devotees. Is there not real Godliness in being claimed? In playing along with mortals the eternal game of love, while you juggle planets on the side?

Well so the ritual was. They would meet in the forest, and Madhusudan Dada would escort him to school everyday. Playing the flute sometimes. Sometimes walking in peace. Sometimes speaking the language of the birds.

Needless to say, no adults in this story figured out that a God had come down to chaperon our dear protagonist. The mother, probably attributed her son’s ramblings about the blue one to white-lies of childhood. And the son, did not quite understand he was dealing with a God here. Kids are like that.

But one day, there was  a feast in the school, and each child had to bring one item of food for the whole school. (A rather unreasonable request, but then perhaps it was a small school.) When the protagonist went to his mother, and said “well mother, I have to take yogurt for the whole school tomorrow”, the mother panicked (because they barely managed to put two square meals together), and did what panicked people often do. Deflect. She said, “why don’t you ask Madhusudan Dada”.

So on the day of the feast, he asks the blue one for some yogurt to feed the entire school. Krishna, took out a small pot of yogurt and gave it to the boy. The boy took it with a sinking heart, because there was no way it would feed the entire school. But he took it because it was better than going empty handed.

Of course the yogurt was magic! When the people at the school, who made fun of him for only bringing so little, tried to pour the yogurt out into something else, there was a tiny problem. You see the yogurt never finished. It went on and on. No matter how much people ate. (And might I say Krishna has done this sort of stuff before, with Draupadi’s sari). Someone needs to speak to him about overkill.

Of course the boy was asked where he got it from, and replied with a straight face that his blue colored, flute playing, peacock feather wearing friend had given him the magic yogurt. Of course everyone rushed to find Krishna in the forest. But they din’t, did they? Because he never lived in the forest. Where was he? Go figure.

But our unhappy lady, on her floor, utterly alone, in the dark night thought of this. The corners of the mouth twitched in a smile. She understood why Radha, Meera and countless Gopis had longed for Krishna. He was the only God who switched places with the devotee. He took the pain, and the hardship, and you became divine. For a moment, you became unreal.

She called out. Softly. Very softly to the carpeted floor. Madhusudan!

The night descended on her.

Can customers crack-down on Child Labor?

In 2014 India’s Kailash Satyarthi and Pakistan’s Malala Yousafzai shared the Nobel peace prize. Ironically, it was a time when border tensions had resurfaced between India and Pakistan. But hopefully this shared peace prize is going to remind people on both sides of the fence that there are values we share.  The future of our children is hopefully one such value.

Kailash Satyarthi is an activist who has worked, over a period of thirty years, to eliminate the practice of child labor in India. In 1983 he formed the ‘Bachpan Bachao Andolan’ (the Save Childhood Campaign), which has since rescued about 80,000 children from illegal and hazardous work across India.[1]  Subsequently, he founded ‘GoodWeave international’ (formerly known as Rugmark) to rehabilitate children working in the handmade carpet industry.  GoodWeave approaches the problem from a ‘supply chain’ and ‘consumer’ perspective.

GoodWeave international is an organization that certifies rugs (that meet certain standards) as ‘child labor free’. [2]It also provides education and other opportunities to children rescued from these rug factories. [3] But before talking in greater detail about the work done by GoodWeave, it will be useful to understand the widespread problem of child labor in the rug industry.

Children between the ages of 4 to 14 are kidnapped or sold and forced to work for up to 18 hours a day to weave rugs meant for export markets in places such as the United States and Europe. [4] The working conditions in the rug industry lead to these children developing malnutrition, impaired vision, deformities caused due to sitting hunched up in loom sheds and respiratory diseases from inhaling wool fibers. [5] Further, girl children who are trafficked for the purposes of the carpet industry are often forced into commercial sex work. This situation makes the work done by GoodWeave International very important.

The GoodWeave model uses the concept of business goodwill to combat the practice of child labor. The certification system is premised on the notion that consumers would prefer to buy products that they know have been ethically manufactured. In order to earn the GoodWeave label rug exporters and importers need to sign a contract to adhere to GoodWeave’s no child labor standard. GoodWeave insists on extensive monitoring and auditing in every stage of the supply chain. The contract requires the exporters to agree to surprise inspections and to pay a licensing fee that supports the educational programs run by GoodWeave. GoodWeave’s arrangements with importers in markets such as Europe and USA, ensures that they import only from GoodWeave certified exporters in South Asia.

Let us turn now to the effectiveness of this movement. Rugs carrying the GoodWeave mark constitute 5% of the import market in North America and Europe.[6] The reason for the pervasiveness of child labor in the larger rug industry is that there is a ‘market demand’ for child labor. Since employing children means that employers can pay lower wages, the manufacturing cost of the rugs in driven down. This is where the certification plays a role by creating consumer awareness and a demand for ethically sourced products.

But it must be noted that labor activists have shared concerns that the complexity of the modern supply chain does make assurances difficult. This difficulty is highlighted by the fact that since its inception, 3700 workers have been ‘rescued’ from factories that were affiliated with the GoodWeave brand.[7] However, the GoodWeave logo is as close as one can get to an assurance of child labor free products.

Concerns with child labor are not restricted to the rug industry only. According to the ILO (Global Child Labor Trends 2008- 2012) there are 168 million children involved in Child Labor all across the world[8]. Concerns in relation to child labor are prevalent in industries like garment[9], electronics[10], and chocolate. [11] The International Labor Organization has Conventions that govern the field. These are the ILO Convention No 138 (the Convention Concerning the Minimum Age for Admission to Work) and the ILO Convention No 182 (On the Worst Forms of Child Labor). The ILO has also issued the Recommendation 190 (on the worst forms of child labor) and the Recommendation 146 (the minimum age recommendation). Sadly, India (with a very high number of child laborers) is among the few nations that have not ratified the Convention on the Worst forms of Child Labor. Despite this there are stringent laws relating to Child Labor in India, in addition to the Juvenile Justice Act and Article 24 of the Indian Constitution.[12] The problem, it seems, is in the implementation.

Though there has been a decrease in the numbers over the years, child labor is still a problem of massive proportions. One of the ways in which this can be tackled (along with laws being well implemented) is through supply chain monitoring (of which the GoodWeave model is a species). It seems appropriate that countries should have laws that require their Corporations to share supply chain information (or at least the lack thereof). Such a law has already been passed by California and is known as the Transparency in Supply Chains Act of 2010.[13] It requires retail sellers and manufacturers doing business in the State (having more than $100,000,000 in annual worldwide gross receipts) to disclose their efforts to eradicate slavery and human trafficking from their direct supply chains for tangible goods offered for sale.  This kind of legislation will ensure that there is supply chain transparency, and allow the consumers to make more informed choices. It will also bolster certification systems like GoodWeave, that can use the licensing fees they obtain from the businesses to rehabilitate the rescued victims of child labor.

Before I conclude, I would like to tell you dear reader, what you can do to tackle this problem. You may not buy rugs, but I am pretty sure you buy chocolates, clothes and electronics. If you are Indian, I can bet you buy crackers on Diwali. I want you to start asking questions about where the stuff you buy comes from. Are those crackers child labor free? Are those clothes made in sweat-shop conditions? What about that delicious piece of chocolate or the cool phone? Some of you, who are more sartorially inclined might want to check out the Ethical Fashion Forum. [14]  It will not be easy for you make lifestyle changes immediately, and some of you may elect to not care. It doesn’t matter. ASK. On some brands you will find information quickly, on some you won’t, but when you ask for information, you become a part of a process to effect change. Your questions will create a demand for answers, and once it is out in the open that a company uses child labor or sweatshop like conditions in manufacturing the products, there will be a loss of goodwill for those companies. This is already happening, and we need to create a momentum for it. It is time that we gave information to consumers, and created a market where there is a disincentive for unethical practices. It is also time consumers asked!

[1] http://www.washingtonpost.com/blogs/worldviews/wp/2014/10/10/who-is-indias-kailash-satyarthi-the-other-nobel-peace-prize-winner/

[2] http://www.goodweave.org/about

[3] Ibid

[4] http://www.goodweave.org/child_labor_campaign/child_labor_handmade_rugs_carpets

[5] Ibid

[6] http://www.theguardian.com/global-development/2013/aug/15/child-labour-product-certification

[7] Ibid

[8] http://www.theguardian.com/global-development/2013/aug/15/child-labour-product-certification

[9] http://thecnnfreedomproject.blogs.cnn.com/2014/08/31/time-to-get-children-out-of-factories-and-into-schools/

[10] Ibid

[11] http://www.theguardian.com/global-development/2013/aug/15/child-labour-product-certification

[12] http://indiankanoon.org/doc/1540780/

[13] http://www.state.gov/documents/organization/164934.pdf

[14] http://ethicalfashionforum.com/

That in which I contemplate the effects of punching or getting punched in an Uber!

Uber provides a service by which people who need a ride can just log into the Uber application on their phones, and request a ride. This application pairs them with drivers who happen to be in the area, and are available to give them a ride. Uber receives a credit card payment from the customer, most of which is given to the driver.  This has been described as technology that has revolutionized how we see the taxi service.[1] Someone with a mobile phone and the right app, can call a cab. And anyone with a car, the app, and driving skills/ licence, can be a driver (at least that is how it started out). They can use their phone to pay the driver, as well as rate them. This has given Uber great success, and it has even become the face of peer to peer economy (along with Air BnB). Uber has encouraged this narrative of peer-to-peer economy

Peer to peer economy (or a sharing economy) is one in which an owner is not using something, they rent the thing out, with the help of a technology that gets the buyer and seller (or a renter and leaser) together. This company charges a fee for this. The company (Uber in this case) says that it is not an employer, but a facilitator of micro-entrepreneurs. It does not pay for overheads like fuel, insurance, vehicle maintenance, and neither does it cover liability for any accident on the job. Why would it? It is not an employer. According to Lyft (a company that has a similar modus operandi), the drivers are really doing a service for the passenger, and ‘Lyft is a by-stander of sorts, analogous to e-bay’[2].

But there is just one problem in this narrative. This practice of companies that are employers claiming that they are not employers is age-old. It is done to get over the hurdles of paying benefits to their workers, and covering on-the-job accidents. Consider this case reported in the Forbes magazine. Omar, an Uber driver in Los Angeles took his passengers to their apartments at 2:30 AM at night. Two of the passengers beat this driver up, and he ended up being admitted to the hospital.  [3] This, however, is not an isolated incident. This same newspaper reports multiple incidents of cars being stolen and drivers being assaulted. The problem is, given the narrative of the company being a ‘facilitator’ and not an employer, these workers cannot get any assistance from Uber.  While we shall be dealing with the legal issue in subsequent paragraph just think of what this means. It is the idea that a man working at the behest of a Corporation (valued at billions of dollars), and getting hurt on the job, is not paid a dime of assistance. Does this not militate against the idea of fairness?

However, Uber’s problems don’t end here. Uber has been publicizing the idea that it can be an avenue for creating jobs for women. In fact it aims to create 1 million jobs for women. (It is difficult to understand how one can create jobs without being an employer, but okay, I guess they plan to facilitate a million entrepreneurs). Despite their admirable goals, the fact remains that if there is a case of sexual assault on any of their drivers in the course of work, Uber claims no responsibility to compensate the victim. UN Women, which had earlier decided to partner with Uber in this project, has now dissociated itself, citing concerns with sexual assault on women. [4] Interestingly, Uber got a lot of bad press in India, when, after a rape case involving an Uber driver and a passenger (who was the victim), it was shown that Uber did not even conduct background checks on its drivers. [5] In fairness to Uber, they have now started to put more stringent checks in place in India. Also here is a detailed description of the background check procedure that Uber follows. But there is also a very real loophole in the legal framework. What happens to a female driver who gets sexually assaulted? Does Uber take responsibility to provide compensation? If they say they are not employers, then NO. Similarly, there is no clarity on Uber’s liability to pay compensation to passengers who get assaulted in the vehicle.  I am not suggesting that an Uber ride is less safe than other taxis. That may not be the case, but certainly the legal position on compensation in case of injury in the cab is not clear.

As far as the employer-or-not issue is concerned, now there are Uber and Lyft employees that have decided that they are not buying the by-standers positions, and the two companies face a class action lawsuit that could possibly change the topography of the peer-to-peer economy. These employees in the USA claim that though they are classified as independent contractors, they are actually employees and the companies owe them reimbursement for overheads, and compensation for injuries on the job. This is something that concerns employment lawyers everywhere, so really this case is worth following.

The legal defense of Uber, and a seemingly solid one, can be summed up in the words of an attorney with the Employment Law Group, “They don’t have to show up to work on Monday at 9 a.m. if they don’t want to…What they’re not understanding is that this lack of control — where they can have a two-hour lunch if they want, or no lunch at all — that freedom comes at the price of if they’re in an accident, the company doesn’t have to pay.”  [6]

At the moment, things seem to be going in favor of the complainants. Uber’s request for summary judgment, and a declaration that its drivers were independent contractors was rejected by the District Court. The matter is now going to Trial before a jury. One strong argument in favor of the drivers is the economic realities test.This test does not only focus on the level of supervision involved in a job, but also the extent to which employees depend on the existence of the business in question. Some of the factors that are considered to determine ‘economic realities’ are mentioned under the Fair Labor Standards Act. [7]   These are as follows:

  • The extent to which the work performed is an integral part of the employer’s business: This is a factor that goes in favor of the drivers, because Uber or Lyft would not have any utility without the service provided by the drivers.
  • Whether worker’s managerial skills affect his opportunity for profit or loss. Given that Uber assigns the passenger to the driver, whose job is to take said passenger to the pre-determined destination, it can hardly be said that this job requires managerial skills.
  • The relative investment in the equipment and facilities by the worker and the employer. In this case the drivers made a pretty significant investment of their car and fuel money. However, I would argue that it is not at all comparable to the investment made by Uber in running and developing the application.
  • The worker’s skill and initiative. To show that a person is an independent contractor, it must be shown that he or she exercises independent business judgment. That does not seem to be the case here.
  • The permanency of the relationship between the worker and the employer. Permanency suggests that a worker is an employee, and this is one factor that strongly goes against the drivers. They do have the independence to stop working for Uber anytime they desire, or not work whenever they feel like it.
  • The nature and degree of control by the employer. Like the preceding factor, this one also goes against the drivers, given that there is a very limited degree of control exercised over the drivers by Uber.

Given that none of these factors are dispositive, there is a chance that the drivers may win the lawsuit against Uber. But one must stop and ask the question, are mis-characterization lawsuits (i.e the one’s where you claim that the workers have been characterized wrongly) really the way to go here? If the employees do win this lawsuit, and end up owing huge sums of money to the workers, what impact will it have on the long term health of the peer to peer economy?  And is it really a good idea to try and fit a revolutionary new concept into old tired methods of classification of labor? This does not mean that Uber and Lyft should continue with their unfettered business model. There is a very strong need for regulation, but there is also a need to understand that shared economies are sui generis, and old methods may not work on them. Perhaps new laws can be enacted that place a burden on these companies to take liability for injuries or accidents at the workplace, but not reimburse for overheads? The drivers could be given some sort of quasi-employee status, so that the regulation does not ultimately kill this new method. There must also be some framework of compensation for people who get hurt or sexually assaulted during their cab rides.

I would also like to ask whether there is a possibility for the unionization of Uber and Lyft drivers. What would this relationship be like? What kind of bargaining power would the union have, given that there crowd-sourcing makes the supply of drivers willing to do the job on the terms of Uber inelastic. Further, can unions play a significant role in the dynamic, changing relationships that the drivers and Uber have at the moment? Only time will tell.

[1] http://www.bloombergview.com/articles/2014-06-12/don-t-stop-the-uber-revolution

[2] http://uberlawsuit.com/Time.pdf

[3] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[4] http://www.theguardian.com/technology/2015/mar/23/united-nations-uber-womens-safety

[5] http://www.reuters.com/article/2014/12/11/us-uber-india-courts-idUSKBN0JP18T20141211

[6] http://www.forbes.com/sites/ellenhuet/2015/01/06/workers-compensation-uber-drivers-sharing-economy/

[7] http://www.dol.gov/whd/regs/compliance/whdfs13.htm

Trade Promotion Authority and Labor Rights

(I have been working on these small articles for a class I have been taking in the law school. Since the topics were so interesting, I thought it would be good to publish some of them on the blog. I have of course taken the Professor’s permission for this. I would love some input and information on these issues, from those of you more in the know. To Indian readers, the perspective here is very American, which is unusual in my posts. But I hope you enjoy reading it anyway.)

Free trade agreements (FTAs) or Regional Trade Agreements have become increasingly popular since the 1990s. [1] These are agreements where the parties (which can be states or customs unions) agree to greater integration through lower tariffs and liberalized trade regimes between each other.

These agreements, in some cases, can cause job losses in industrialized countries, like the United States of America. This is because jobs could move from the more industrialized nations, where wage rates are higher, to less industrialized nations with lower wage rates (and a weaker framework of labor rights). An example of this is the North American Free Trade Agreement (NAFTA). On its website the AFL-CIO claims that nearly 700,000 American jobs have been lost since the NAFTA took effect in 1994. [2] This website also states that 20 years after NAFTA was passed, all fifty American states have had jobs lost or displaced to Mexico. [3]

Now it must be remembered that there is an economic logic to these free trade agreements, and they have played a role in maximizing consumer choice. In the developing countries they have created jobs, albeit with scanty worker protections. However, in the USA these F.T.As have come under attack from labor groups, due to the job displacements which have had a significant social impact. An illustration of the grave impact of job-losses/ displacement can be seen in the rust belt of the USA, with high rates of poverty and crime. Particularly moving is the story of Gary, Indiana, which turned from a steel-city to a crime hub (at the risk of oversimplifying things.) [4]

The Trade Promotion Authority (or Fast Track) as it is known, has been in the public eye of late. President Obama is seeking the Fast Track authority in order to negotiate the Trans-Pacific Partnership (T.P.P).  Fast Track is meant to facilitate negotiating trade deals. It works by providing for a framework of close collaboration between the members of the Congress and the President of the United States. This means that members of the Congress (through the Congressional Oversight Group) get a seat at the table during trade negotiations. In exchange for this, the Congress has to vote for trade-agreement implementing legislation without amendments (i.e. it is a Yes-No vote), and within a specific time frame. [5]

The advantage of Fast Track is that it strengthens the USA’s hand during trade negotiations.[6]  Other countries have a greater faith in the USA negotiators because they know that the USA speaks with one voice at the negotiating table. [7] The fast track authority also assures the trading partners of the USA that the completed trade agreements will be decided quickly and without any amendments. [8] But this efficiency comes at a cost.

The Public Citizen’s Global Trade watch has described the Fast Track Authority as an ‘undemocratic path to unfair trade’. [9] This is because Fast Track limits the kind of debate that would otherwise take place in Congress, and restricts special interests groups (like labor unions) from opposing trade agreements that could cause job losses. This is what, according to AFL-CIO and Public Citizen’s Trade Watch happened with NAFTA.  This is exacerbated by the fact that Trade agreements today are far wider than the simple tariff arrangements of the past. Which brings us to Obama and the TPP.

Leo Gerard, the President of the United Steelworkers, has spoken out against Obama’s request for Fast Track, noting the 400 million tons of over-capacity in steel manufacturing in China, which will continue to eat into the US markets. In fairness, China is not a part of the TPP yet (though it has been showing a lot of interest in it of late).  It is also important to note that U.S. wage rates have not increased in ‘real terms’ since 1973, since Fast Track was passed.[10] The ‘right to work’ is enshrined under Article 23 of the Universal Declaration of Human Rights (which has attained the status of customary international law),  and Article 6 of the International Covenant on Economic Social and Cultural Rights (which the USA has not ratified). The ILO Convention 122 on Employment policy (to which the USA is not a party) also lays down that , ‘each Member shall declare and pursue, as major goal, an active policy designed to promote full, productive and freely chosen employment.’[11] However, it is difficult to make out a case for a hard international law obligation on part of the USA to avoid large-scale job losses. But the USA is a member of the ILO and is bound by the principles in the Declaration of Philadelphia, which includes the goal of ‘full employment and raising the standards of living’.[12] Further, the large scale job losses do severely diminish the capabilities of communities and people affected by them.

In conclusion, it seems that the chances of the T.P.P going through without the Fast Track authority are slim. Further, there is a large body of economic literature that swears by the economic logic of comparative advantage. Taken at face value this would make the signing of the T.P.P is pivotal for US interests. Further it may not be entirely fair to describe the Fast Track process as undemocratic, given that the President of the USA (who signs off on these deals, is democratically elected).  However, social impact of the job displacement is real, and the fears of trade unions and labor groups cannot be wished away. Before canvassing for Fast Track authority, the President should provide a clear and coherent vision of how he plans to tackle the issue of job losses.  It is possible that through vocational training and rehabilitation (programs dealing with which which already exist to a certain extent), the impact of job losses can be minimized, but such policies must be developed by taking the views of all stakeholders into account. Holding back the trade agenda, however, seems difficult.

[1] http://www.wto.org/english/tratop_e/region_e/region_e.htm

[2] http://www.aflcio.org/Issues/Trade/NAFTA

[3] Ibid

[4] http://prospect.org/article/where-work-disappears-and-dreams-die

[5] Report to the Congress on the Extension of the Trade Promotion Authority, United States Trade Representative, https://ustr.gov/archive/assets/Document_Library/Reports_Publications/2005/2005_TPA_Report/asset_upload_file834_7514.pdf

[6] Ibid

[7] Ibid

[8] Ibid

[9] http://www.citizen.org/fast-track

[10] http://www.citizen.org/Page.aspx?pid=2124

[11] http://www.ble.dole.gov.ph/issuances/ILO_122.pdf

[12] http://www.un-documents.net/dec-phil.htm