A Note by Kaelin Sanders
Download full note here.
In the 2020 general election, California voters approved Proposition 22, a statewide ballot initiative that classifies app-based drivers (Uber or Lyft drivers, for example) as independent contractors rather than as employees.[1] The culmination of over $200 million in political spending––largely by ride-share companies Uber, Lyft, Postmates, Doordash, and Instacart––the initiative was approved by 58% of voters.[2] Since its passage, the initiative has been met with regular criticism.[3] Many observers first say that classifying app-based drivers (“drivers”) as independent contractors was fundamentally wrong from a worker’s rights perspective, especially in light of state court decisions and legislation that preceded the initiative and established a new standard for making this very decision.[4] Further, there are reports that businesses are now firing their employee-status delivery drivers and hiring cheaper app-based drivers in their stead; that drivers are earning considerably less under the initiative than was purported by its advocates; and that ride-share companies are now taking away features from drivers that gave them greater control over their earnings.[5] Because this initiative has been floated as a model for the rest of the United States, it is important to examine Proposition 22 with an eye to the future.[6] Additionally, the story of Proposition 22 also provides insight into the challenges of enacting sweeping legislation governing worker status.
This Note’s Part II will review the context of Proposition 22’s passage. Part III will examine the initiative’s key provisions that provide how it determines worker status and how the initiative may be amended in the future. Part IV suggests legislative recommendations for future iterations of this issue that are likely to arise, one that pertains to ride-share legislation specifically and one that pertains to independent contractor legislation broadly. Part V concludes.
[1]. Jeong Park, Uber, Lyft Win Approval of California Gig Worker Measure, Sacramento Bee (Nov. 4, 2020, 2:25 PM), https://www.sacbee.com/news/politics-government/election/article246814727.html.
[2]. Id.
[3]. See, e.g., Greg Bensinger, Other States Should Worry About What Happened in California, N.Y. Times (Nov. 6, 2020),https://www.nytimes.com/2020/11/06/opinion/prop-22-california-labor-law.html?action=click&module=Opinion&pgtype=Homepage; Michael Sainato, ‘I Can’t Keep Doing This’: Gig Workers Say Pay Has Fallen After California’s Prop 22, Guardian (Feb. 18, 2021, 5:00 AM), https://www.theguardian.com/us-news/2021/feb/18/uber-lyft-doordash-prop-22-drivers-california.
[4]. See, e.g., Terri Gerstein, What Happened in California Is a Cautionary Tale for Us All, N.Y. Times (Nov. 13, 2020), https://www.nytimes.com/2020/11/13/opinion/prop-22-california-gig-workers.html. See also Dynamex Operations West, Inc., v. The Superior Court of Los Angeles Cty., 416 P.3d 1, 8 (Cal. 2018); Assemb. B. 5, Cal. Leg. 2019-2020, Reg. Sess. (Cal. 2019).
[5]. Joshua Bote, Safeway to Replace Delivery Workers with Doordash Drivers––But Says It’s Not Tied to Prop. 22, S.F. Gate (Jan. 5, 2021, 12:37 PM), https://www.sfgate.com/bayarea/article/Safeway-will-replace-delivery-workers-with-15847851.php; Sainato, supra note 3; Driver Announcements, Upcoming Changes to the Driver App, Uber Blog (Apr. 8, 2021), https://www.uber.com/blog/california/upcoming-changes-to-the-driver-app/.
[6]. Josh Eidelson, Election Day Gave Uber and Lyft a Whole New Road Map, Bloomberg (Nov. 8, 2020, 6:00 AM), https://www.bloomberg.com/news/articles/2020-11-08/prop-22-gives-uber-and-lyft-a-new-model-for-gig-economy-workers.