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2020’s Legislative Attacks on Gig Workers Will Change Labor Forever

The passage of Proposition 22 in California may serve as a catalyst for a new kind of labor organizing across the U.S.

Rideshare driver Jorge Vargas raises his "No on 22" sign in support as app-based gig workers hold a driving demonstration with 60-70 vehicles blocking Spring Street in front of Los Angeles City Hall on October 8, 2020, in Los Angeles, California.

In 2020, we saw perhaps the largest protest movement in U.S. history, a presidential election whose outcome could have changed the nature of U.S. democracy, a global pandemic that has killed hundreds of thousands and has completely transformed everyday life, and a recession that has left millions unemployed.

Buried in all of these momentous events, something happened which could take labor laws in the United States down a dangerous road. California’s Proposition 22 was the most expensive ballot initiative in the country’s history — and it passed overwhelmingly in November. Bought and purchased by app companies such as Uber, Lyft, Instacart, DoorDash and Postmates — who spent more than $220 million on the campaign — Proposition 22 exempts so-called gig workers from many basic labor rights and seeks to create a new subclass of workers.

The passage of Proposition 22 means that roughly 8.5 percent of the workforce in California will not be guaranteed a minimum wage, won’t have access to unemployment insurance or overtime pay, will not get paid sick leave or family leave, and will have no protection from discrimination based on immigration status or historical traits tied to race. This is especially concerning as we now know that 78 percent of gig workers are people of color, according to a recent study conducted by San Francisco’s Local Agency Formation Commission and led by University of California, Santa Cruz professor Chris Benner.

Another issue of concern is that Proposition 22 eliminates required sexual assault training, as well as the obligations of Uber and Lyft to investigate both customers’ and drivers’ harassment claims.

Further, “the Proposition overrides any local ordinances,” Cherri Murphy, a former Lyft driver and current social justice minister, told Truthout. “During COVID, there were ordinances that were instituted to provide sick leave for workers like me in San Francisco, Oakland, San Diego and L.A. — and now they will be wiped away.”

One of the most concerning things about this ballot measure is that it prevents legislators from amending the law, requiring a seven-eighths majority to make any changes, while also preventing local policy making to expand rights for workers.

Although perhaps one of the most significant setbacks to labor rights in recent history, Proposition 22 is just one in a long line of attacks waged by ride-hailing and delivery start-ups against workers in recent years.

“2020 marks an evolution of what the companies have been doing really for the better part of the last decade,” Brian Chen, staff attorney at the National Employment Law Project, told Truthout. “Gig companies have been on the front lines of carving their workers out of employee status across state legislatures.”

Many states have already passed regulations that classify rideshare drivers as independent contractors, but those laws differ somewhat from Proposition 22, which ultimately seeks to expand these laws to other sectors, such as delivery companies, and could in fact create space for companies like Amazon or FedEx to adopt similar models that lower wages for their existing workforce.

Another reason that Proposition 22 is so pernicious is that it serves as a blueprint for similar laws to be enacted across the country. With California setting the stage, attacks on gig labor are now popping up in places like Illinois and New York, where these companies have very large numbers of workers.

But ultimately, these app companies are hoping to roll out these new labor models on a federal level. Their aim is to create an entirely new worker classification that goes beyond independent contractor or employee, further eroding any safety nets that are currently maintained at the federal level and directly attacking our most basic ideas of what work is and what work ought to provide for people.

“It’s a really dangerous proposition that these companies are advancing,” Chen said. “They are fundamentally saying their workers aren’t really workers — that they’re independent businesses and therefore they don’t need the usual basic protections that [almost] all workers have had since the New Deal.”

If these strategies are successful, the nature of work in the United States could be radically transformed. And by codifying and locking in a new subclass of workers, what companies like Uber and Lyft are doing could just be the beginning of a much broader attack on workers in general.

“There are already examples of different kinds of employers in health care, retail and hospitality that have experimented with managing their workers through a digital app so that they can escape their employer obligations,” Chen said. “And as this model continues, it’s just going to incentivize entire industries to gig out jobs that once used to provide middle-class stability.”

Although Proposition 22 was a huge win for these app companies, they are likely to face many challenges as they seek to expand to the federal level. “The federal landscape is likely to change: It could be incrementally, it could be drastically, depending on a number of factors,” Steve Smith, communications director at the California Labor Federation, told Truthout. “But under Joe Biden’s administration, we’re going to see a different posture toward gig work than we’ve seen under Trump. And so that’s the first thing that I think these companies are going to have to overcome.”

It’s difficult to predict exactly how the incoming Biden administration will handle all of this. Publicly, the administration has already decried the efforts of app companies to misclassify workers, stating that, “[a]s president, Biden will put a stop to employers intentionally misclassifying their employees as independent contractors. He will enact legislation that makes worker misclassification a substantive violation of law under all federal labor, employment, and tax laws with additional penalties beyond those imposed for other violations.”

And yet at the same time, the Biden administration has appointed Jake Sullivan to national security adviser — a previous Uber and Lyft adviser. Further, incoming Vice President Kamala Harris’s sister is married to Uber executive Tony West, who may be running for a role in the new administration. It’s been reported that West has been a longtime political adviser to Harris since she first ran for public office.

Regardless of how the Biden administration moves forward, it’s unlikely that app companies will end their attacks on regulation. They have been fighting against any attempt to rein them in for years and we will most likely continue to see this fight unfold at the local, state and federal levels for years to come.

There have already been many attempts to regulate companies like Uber and Lyft at both the state and local levels. Last year’s passage of Assembly Bill (AB) 5 in California was a major attempt to end the misclassification of workers. Unfortunately, much of the bill is going to be undone by Proposition 22.

Additionally, earlier this year, California’s attorney general, along with city attorneys from Los Angeles, San Diego and San Francisco, filed a lawsuit against Uber and Lyft, claiming the companies gain “an unfair and unlawful competitive advantage by misclassifying workers as independent contractors.

But the battle doesn’t only exist in the legislatures or at the ballot box — gig workers are taking to the streets and organizing themselves as they continue to be exploited by their employers.

“Any time a group of workers is exploited over the long term, organizing is inevitable,” Smith said. “And that’s what we’re seeing in the gig economy right now, which makes us incredibly optimistic about the future, because these companies can spend their way out of a ballot measure, but it’s a lot harder to spend their way out of worker organizing.”

Drivers have organized many demonstrations and caravans to bring awareness and build their base of support, perhaps most notably in a three-day caravan that traveled from Los Angeles to Sacramento.

“The most robust on the ground organizing is done by a group of workers called the Rideshare Drivers United,” Veena Dubal, a law professor at the University of California, Hastings College of the Law, told Truthout. According to Dubal, the group has about 50 statewide leaders and somewhere between 10,000 to 20,000 members. “They now see their fight on the ground as bargaining directly with these companies, since they cannot use regulations to push the state for better working conditions.”

The group has focused on building worker power to use direct actions and things like strikes and protests to put pressure on the companies to better their working conditions.

“People are still working in these jobs and it’s even more precarious than they have been,” said Nicole Moore, a Lyft driver and labor organizer with Rideshare Drivers United. “Basic labor law is non-negotiable — we see the direction this is going and we want to protect workers. We are gonna fight back.”

Despite being a huge blow to labor rights in the United States, Proposition 22 might serve as a catalyst for a new kind of labor organizing. The nature of gig-work is often quite atomizing, but the coming together of these workers to join in a collective struggle demonstrates that they aren’t going to take it sitting down.

“I think that’s probably one of the most inspiring things that happened during Prop 22,” Chen said. “The direct, on-the-ground organizing and building worker power up to and including going on strike — the fight back is only going to continue.”

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