Prop. 22: Rideshare Drivers, Labor Advocates Revel In Proposition's Reversal

San Francisco CA

24 August, 2021

2:28 PM

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By David Mamaril Horowitz, Mission Local August 23, 2021 A California Superior Court judge's Friday decision that Proposition 22 is unconstitutional represented a milestone in the gig worker landscape — one that could pave the way toward better work conditions, gig workers said. Uber, Lyft, Doordash and other gig economy giants spent more than $200 million to promote the measure as beneficial for drivers, and it was passed in November 2020 with some 58 percent of the vote. The measure, the companies argued, would allow workers to retain a flexible schedule and grant them benefits such as a minimum wage and a health stipend. But after the initiative won, some elements of rideshare driving that offered flexibility — created during the Prop. 22 campaign — vanished. While the court's ruling did not address any of those issues, it makes it clear that the rideshare and delivery driver companies overreached in a measure that made it nearly impossible for gig workers or legislators to alter. Its demise offered great hope to organizers. Veena Dubal, a UC Hastings law professor who has researched the gig economy and filed a brief supporting the drivers in the case, explained that the court ruled that the measure was invalid because it violated a California rule that limits initiative statutes to a single subject. "The court said that (Prop. 22) only really protected the economic interests of the companies and did not protect the workers, and because its stated objective was something quite different than what it actually did, it violated the law," she said. Also, the court ruled that the measure took away legislators' ability to provide workers' compensation or create some sort of work compensation scheme for workers, which violated the California Constitution, she said. Drivers have protested the measure since its passage, holding that gig giants have reneged on the promises made during the campaigning on Prop. 22. So, for many, Friday's decision was long-awaited and fueled excitement over potentially better conditions down the road. Ken Jacobs, chair of the UC Berkeley Center for Labor Research and Education, said it's a big win for drivers who challenged the law — but only the first stage, and it could take another year until it's resolved. He added that he wants to know what will happen with the attorney general's lawsuit for injunctive relief requiring Uber and Lyft to classify drivers as employees, which was put on hold when Prop. 22 took effect. "If this is held up by the California Supreme Court, then we're back into the courts over the issue of them complying with the law," he said. That promises to be a lengthy fight. But it's one gig workers are now far more hopeful about. Cherri Murphy, a three-year Lyft driver with the advocacy organization Gig Workers Rising, said, "(I know) what it means to be driving without workers compensation, having a looming threat of an accident with no workers compensation. I know what it's like to not have proper healthcare. I know what it's like to not have a fair wage or a restroom. So, gig workers like me, we are celebrating this huge victory." Dubal said she suspects the decision will be appealed in the next three to four weeks. After the appellate ruling, she said, it will "certainly be appealed to the California Supreme Court." It's possible for someone to file an injunction forcing the companies to comply pending an appeal. However, Dubal said, she suspects the companies will not change how they treat workers until forced to do so by the California Supreme Court. "We can anticipate this will go on for the next many months," she said. So far, nothing has changed on the road, said one Uber and Lyft driver nicknamed Molhado. "Uber and Lyft haven't changed anything — they sent us a text that it's going to continue the same way it is, and they're going to appeal and all that shit," he said. "All the drivers want is just being paid fairly you know, that's all … Right now it's not right — they're taking too much money out of the rides from us." That message went out to drivers on Saturday, according to an email obtained by Mission Local with the subject line, "Prop 22 remains in effect." "… we will appeal this ruling, and we expect to win. In the meantime, nothing has changed. Prop 22 remains in effect, including all of the protections and benefits it provides independent workers like you, like guaranteed minimum earnings, injury protection, and more," Uber said in the statement. "It's also important to say that this ruling does not reclassify drivers and delivery people as employees — preserving the flexibility and independence you have repeatedly told us you value." 'Independence' With copycat legislation being proposed in other states, Friday's ruling offers an indication of what may transpire elsewhere. In the spring, Uber removed two features it granted drivers during the Prop. 22 campaign — features that appeared to give workers the agency of independent contractors. Dubal, the UC Hastings law professor, said that the rescinding of these policies was significant. The company removed drivers' ability to set their own rates with a fare multiplier, stating that 80 percent of passengers who'd matched with a driver with a multiplier of more than "1x" had declined the higher fare and failed to request another ride with Uber. "This is the big elephant in the room," said Torsten Kunert, a popular rideshare YouTuber known by the alias "Rideshare Professor," who added he gets some 300 emails a day from drivers. "Drivers had their multiplier once, they stepped into their true worth and made money that they deserved to make, and then it was taken away." Uber also stopped showing drivers the details of their next trip unless they accepted five of the most recent 10 rides. "It was trying to control what I do, which is what an employer does," said James Allen, an Uber driver with more than 4,000 rides. "If you're an independent contractor, you adjust this stuff on your own." Kunert said that a true independent contractor would be able to set their own rates, work at their own schedule and can decide where they drive. "We have to understand that we got a taste, we got an appetizer of what it could be like to be an independent contractor, and that got stripped away," he said. "And now it's time to stand up and fight for it." What's more, many drivers have expressed confusion over how to get the quarterly healthcare subsidy from Prop. 22. The minimum work hours required for the stipend only counts time when a passenger is in the car; it's inaccessible to drivers who get insurance through family members or through MediCare or MediCal; and the vast majority of drivers are unaware of the requirements for the insurance, according to a study by Tulchin Research and commissioned by SEIU. Eric Dryburgh, field director at the advocacy organization Rideshare Drivers United, said that of the many calls he's had with drivers, just one or two spoke of receiving healthcare benefits through the companies. Molhado, the Uber driver, said he hasn't received anything. "I worked for them for a year and a half, more than 40 hours a week — last week, worked 84 hours — haven't gotten shit," he said about the health stipend. Kunert, the Rideshare Professor on YouTube, said he's hoping for drivers to negotiate a hybrid model somewhere between independent contractor and employee, where drivers can have independent contractor rights and have a voice at the table for better work conditions, including medical coverage. "Right now what they're offering is a very, very watered-down version, and you're literally forced to drive around the clock and put in big hours to … achieve Uber and Lyft's" health coverage, he said. Mission Local covers San Francisco from the vantage point of the Mission, a neighborhood with all of the promise and problems of a major city. You can support Mission Local here.