California hotel workers strike back over 'union busting' app

• California hotel workers walk out over pay, conditions
• Employers turn to staffing apps to hire replacements
• Union files complaint alleging Instawork strike penalties

LOS ANGELES - Facing a wave of strikes as the summer season kicked off, California hotels found a new way to fight back - apps that hire temporary workers and automatically penalize them if they join the strikers, union leaders say.

Replacements hired through the apps have seen their employee ratings cut and shifts canceled for taking to the picket lines, said Kurt Petersen, co-president of Unite Here Local 11, which called July's walkouts over pay, conditions and housing costs.

"These apps automatically punish workers for participating in union activities ... This is the first time we've ever seen this," said Petersen, whose union represents more than 30,000 hospitality workers in Southern California - from cleaners to dishwashers and waiters.

Unite Here has documented at least six Los Angeles hotels that used staffing apps to replace striking workers during this month's walkouts.

Last week, the union filed an unfair labor practice (ULP) complaint with the National Labor Relations Board (NLRB) against the Instawork platform - an app-based staffing company recently valued at more than $700 million.

The complaint says temporary staff scheduled through Instawork to work at the Laguna Cliffs Marriott Report & Spa in Dana Point, a city in Southern California, had shifts canceled by the app when they joined a strike there.

"(This) automated policy and practice interferes with workers' exercise of their rights," reads the complaint, which also names the hotel's owner, a fund associated with the University of California, and Aimbridge Hospitality Group - the property's management company.

Asked about the union's NLRB complaint, Instawork declined to comment on ongoing "legal matters", but spokesperson Meghan Hermann said the app does not "retaliate against (workers) for engaging in protected activity, whether related to political and/or union activity or otherwise."

The University of California, Aimbridge Hospitality Group, and Marriott International did not immediately respond to requests for comment.

While it is legal for employers to use temporary staffing firms to replace strikers, replacement workers also have the right to organize and engage in strikes, said Tobias Higbie, a labor historian at University of California Los Angeles.

Veena Dubal, a professor of labor law at the U.C. Irvine School of Law, said the case was an example of the "automated violation of U.S. labor law."

"I've never seen a case like this before," she said.

Replaced 'like robots'

Hotel workers in Southern California first voted in early June for strike action as contracts with major hotels were set to expire at the end of the month.

They began walking off the job during the July 4 holiday weekend, when replacement staff immediately started turning up to take over their posts.

"We noticed new workers showing up at the hotels, and we didn't know from where," said Jeymmy Morales, 38, a cleaner who went on strike at another Marriott hotel in El Segundo, a city in Los Angeles County.

"It was like we could be replaced like - like we are robots," she said.

Hotels must be ready to keep operating during strikes, said Peter Hillan, a spokesperson for the Hotel Association of Los Angeles, an industry group.

"Hotels have contingency plans for labor disputes, as well as natural disasters and health scares" Hillan said.

One temporary worker leaving the El Segundo Marriott after a shift on July 12 who gave his name as Ali told Context he had been booked to work there via Instawork, and had no idea that a strike was underway.

"This is my first day here, and I do support them," he said as he gestured towards the picket line outside the hotel, where dozens of Unite Here members marched along the sidewalk carrying signs reading "strike" in English and Spanish.

"But on the other hand, I need to make money," Ali said.

Lessons from Uber

According to estimates from the market research firm Staffing Industry Analysis (SIA), the app-based staffing industry has more than quadrupled in size over the last two years to reach more than $21 billion in revenue.

"The idea is to supply just-in-time labor for a variety of reasons - including strikes, but also manufacturing peaks, or project work," said Barry Asin, president of SIA.

"These staffing firms have learned from Uber and Lyft, using algorithms and to some extent gamifying the experience for workers," he said, referring to the leading ride-hailing companies and their driver rankings.

Instawork, for example, allows users to earn different color badges based on how many shifts they complete, and workers are rated according to a five-star ranking system.

Some hospitality workers are already suffering the consequences of the automated strike penalties, according to the union's NLRB complaint, which centers on the case of Thomas Bradley, a 40-year-old Instawork worker.

Bradley said his in-app rating declined after he was marked as a "no show" when he joined the picket line in early July at the Laguna Cliffs Marriott, where he had been scheduled to work as a cleaner and dishwasher.

The app then automatically canceled the shifts he had booked in the coming days, he said by phone.

A few days later, on July 12, his Instawork account informed him that he had been suspended for a week after he took part in a strike that day at the Hilton Anaheim instead of working a shift as a bar tender there.

A Hilton spokesperson said Bradley was not an employee and could not comment on his case.

"I'm living on the edge ... But I didn't want to be used to break the strike," said Bradley, who is currently homeless and sleeps in his car.

He said he had been relying on Instawork to pick up short-term jobs in the Los Angeles area while he searched for permanent work and housing.

Hours after Context contacted Instawork on July 14 to request comment on Bradley's case, the suspension on his account was lifted, a Unite Here representative said.

In WhatsApp groups messages from July seen by Context, some Instawork workers in the Los Angeles area voiced fears that they would be penalized by the app's ratings system if they did not agree to show up as replacement workers during the strike.

In May, lawmakers in Illinois passed a new law that would explicitly require staffing apps to notify workers if they are being brought in as temporary workers during a strike.

"More and more these apps are being used for staffing in these situations," said Roberto Clack, director of Temp Worker Justice, a labor group in Chicago.

"But workers should have the right to refuse these kinds of assignments."

The California case highlights the need for staffing apps to follow existing labor laws - even when decisions are automated, said Valerio De Stefano, a scholar of artificial intelligence and labor relations at York University in Canada.

"Apps are operating as union busters in this scenario," he said. "But automated decisions still must follow labor laws."

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(Reporting by Avi Asher-Schapiro; Editing by Helen Popper)