The Case for Voting "No" on CA Prop 22 (Excerpts)
- Keith F. Eberl -
The writer Keith Eberl is a rideshare driver
in Los Angeles and organizer for Rideshare
Drivers United an independent driver-created
and driver-led association of 19,000
California drivers.
 Attorneys for
Uber, Lyft, and DoorDash wrote the 2020
California ballot initiative known as
Proposition 22. Contrary to the companies'
deceptive ad campaign and intimidating messages
to their workers, Prop 22 does not
preserve driver flexibility or save drivers from
politicians. What Prop 22 does do is
change current law so the companies can shift
their costs to the driver and diminish or remove
drivers' rights, protections, and benefits. Prop
22 will also block drivers' ability to organize
so they can't collectively bargain a contract.
In addition, this proposition will block local
governments from writing or enforcing
protections for drivers, such as in a crisis
like COVID-19, and will leave governments
footing the bill for the basic health and
welfare of drivers.
I should know. I have been a full-time
rideshare driver for four years and an organizer
with Rideshare Drivers United for three.
Rideshare Drivers United is an independent, Los
Angeles-based, driver-created and driver-led
association of 19,000 California rideshare
drivers. Our goal is to become a union and win a
voice on the job, fair pay, and dignity for the
work we do. [...]
From their start, the app-based companies'
business models have depended on using drivers
like employees while treating them as
independent contractors so that the companies
can shift their costs to the drivers. This is
why we have seen and heard so much in the news
about class-action lawsuits against Uber and
Lyft for misclassifying their drivers as
independent contractors.
In 2018, the California Supreme Court ruled in
favour of truck drivers who sued the Dynamex
company for the same reason. The court adapted
what's known as the "ABC test" used by
Massachusetts and New Jersey to determine that
the truckers were in fact employees of the
company, and so the "Dynamex" decision became
the law of the land in California. In 2019, this
test was written into a California bill called
"AB5" to define what an independent contractor
is. [...]
None of Prop 22 originated from workers or
their elected representatives. In fact, because
the companies have been ignoring current wage
laws, Rideshare Drivers United built an online
tool to help more than 5,000 California drivers
file wage claims with the California Labor
Commission against Uber and Lyft for unpaid
wages, expense reimbursements, and damages
totaling over $1.3 billion. This action was
called "People's Enforcement of AB5." [...]
In June of this year, the California Attorney
General sought an injunction from the courts to
force the companies to cease misclassifying
their workers and comply with the law. Instead,
in old-style union-busting fashion, Uber and
Lyft began to incite fear in their workers and
the public by threatening to close up shop in
California if the injunction was granted,
putting tens of thousands of drivers out of
work. News outlets across the country lit up
with sensational headlines that rideshare in
California was facing imminent shutdown. "We'll
have to close the factory!" the company bosses
said. [...]
In the meantime, the companies have launched a
massive misinformation blitz to promote their
ballot initiative. Deceptive ads are showing up
in every corner of mass media and electronic ad
space you can find, including in the passenger
and delivery customer apps. [...]
So, after threatening to fire everyone and
leave town, company bosses are now barraging our
work apps with pop-up messages [...]. This is
happening every day, several times a day, in our
work space -- the apps on our phones.
 [... T]hese
faceless bosses try to confuse us. We are
presented with the message: "Prop 22 is
progress. Prop 22 will provide guaranteed
earnings and a healthcare stipend." Again, there
is no human interaction here, and no explanation
of what those are exactly or why that isn't
happening already, but we are presented with two
buttons: one marked "Yes on Prop 22" and the
other "OK."
Spreading fear and confusion amongst workers is
a classic union-busting tactic. (On October
22, drivers filed a lawsuit against Uber for
violating a California law that prohibits
employers from trying to influence employees'
political activities by threatening a loss of
employment). [...]
[Prop 22] would grant app-based transportation
and delivery companies a complete exemption from
AB5, freeing them from complying with
California's labour laws (which they have
flouted since their founding) and signalling
that corporations can establish a permanent
class of unprotected workers.
Prop 22 would strip or severely diminish
app-based rideshare and delivery drivers of our
right to a minimum wage, overtime, expense
reimbursement, healthcare, sick leave, workers
comp, safety regulations, anti-discrimination,
and the right to organize. But, it will still
allow the companies to use us workers like
employees because of the way they control us.
Let's have a look at the earnings and
healthcare aspects of Prop 22. Prop 22
eliminates basic workplace benefits and replaces
them with a new, lower "earnings guarantee" and
a "healthcare subsidy" payment designed to save
companies from footing the bill for the expenses
they would otherwise have under current law.
The "earnings guarantee" of pay would be equal
to 120 per cent of the minimum wage (that would
be $15.60 in 2021 when the California minimum
wage will be $13), but drivers would only be
paid for "engaged time." "Engaged" means "from
when an app-based driver accepts a rideshare
request or delivery request to when the
app-based driver completes that rideshare
request or delivery request." Drivers would not
be paid for time waiting for a ride request.
Since part of the company's business model is to
saturate some areas with an oversupply of
drivers, wait times can consume large parts of
every hour a driver is on the road, including
spending 30-45 minutes in the driver queue at
Los Angeles International Airport.
"Per-mile compensation for vehicle expenses"
under Prop 22 would be 30 cents per "engaged
mile" [...]
If drivers are in a densely populated urban
area that is saturated with other drivers and
have few places to stop legally, like downtown
Los Angeles on a weekday, drivers may find
themselves constantly on the move with no fare
or order to pick up and deliver. They will not
be compensated for miles driven without a rider
or delivery to pick up, even though they are
waiting for the company to send them work.
Under current law, however, workers must be
reimbursed for mileage at the standard IRS
mileage reimbursement rate, which for 2020 is
calculated at 57.5 cents per mile and isn't
restricted to "engaged miles" when calculating
reimbursement.
Drivers also know from experience that the
companies will not compensate us for downtime
caused by the need to stop work to clean after a
messy trip, to file an emergency report in the
app, or to respond to a company error or false
complaint against us that has caused a loss of
income, a suspension, or wrongful termination.
UC Berkeley Labor Center's wage assessment of
the ballot initiative found that "after
considering the multiple loopholes in the
initiative, the pay guarantee estimate for Uber
and Lyft drivers is actually to be the
equivalent of a wage of $5.64 per hour." The
authors say, "Not paying for [logged in but not
"engaged"] time would be the equivalent of a
fast food restaurant or retail store saying they
will only pay the cashier when a customer is at
the counter. We have labour and employment laws
precisely to protect workers from [this] kind of
exploitation." Prop 22 means workers would have
to work longer shifts just to earn a living wage
-- putting in more than 40 hours a week with no
overtime pay.
Let's look at this the way a driver like me
does -- basic. How much will I get paid for a
fare from Los Angeles Airport (LAX) to San
Clemente at night? A quick "ask Google" and it's
65 miles to San Clemente and one hour in no
traffic. I know from experience that an Uber X
fare like this pays out at roughly $52. (Pretty
lousy for the distance).
The exact fare I'd get paid would be $51.65,
because the Uber X fare in Los Angeles is at a
rate of $0.60/mi and $0.21/min (or $12.60/hr)
for the time when a passenger is on board.
If Prop 22 passes and it's now 2021, that same
fare would pay me at a rate of $0.30/"engaged
mile" and $15.60/"engaged hour" (or
$0.26/"engaged minute"). Again, "engaged time"
is from when I accept a ride request until I
drop off the passenger.
Now, I work mostly at LAX.... For the sake of
this exercise, let's say I would travel about
one mile from the holding lot and it would take
about 10 minutes until I had my passenger on
board if someone's waiting at the curb. At Prop
22 rates, that part pays $2.90. The part where I
have a passenger on board and drive all the way
to San Clemente at Prop 22 rates? That pays
$35.10. So the total payout for the same ride
from LAX to San Clemente at Prop 22 rates is $38
or $13.60 less than current Uber X rates.
Under current law, drivers have the right to be
compensated for all on-the-clock time,
reimbursed for work-related mileage at more than
double the Prop 22 rate, and reimbursed for work
related expenses. As employees, we have the
right to organize and negotiate a contract for
better than the bare minimum.
If Prop 22 passes, the app companies would
replace health insurance coverage with their
smaller "healthcare subsidy" payments designed
to save the companies money at the expense of
their workers' health and safety. After sifting
through the convoluted language of Prop 22 on
this health benefit, we find that the companies
have defined the maximum subsidy that any one of
them will pay a worker as just 82 per cent of
"the average statewide monthly premium for an
individual ... for a Covered California bronze
health insurance plan."
Covered California is where you shop for
"Obamacare." The lowest costing insurance plans
are in the "bronze" tier where you find plans
with the lowest premiums, but highest
deductibles and the least coverage. There are 12
bronze plans, but who you are and where you live
can have a dramatic effect on what your premium
is. So, how do you figure out the average for
the whole state across 12 bronze plans? Someone
at Covered California needs to figure it out
because Prop 22 is going to require them to
publish it. Until then, we don't know what we're
voting for.
Otherwise, there are two subsidy tiers you have
to work for to earn: either 41 per cent of that
bronze average, or 82 per cent of that bronze
average. Which one you earn depends on whether
you maintain an average of at least 15 "engaged
hours" or at least 25 "engaged hours" of work,
per week, for three months, respectively. If you
miss both you could get nothing. All of these
are paid to you quarterly. You can earn a
subsidy from more than one company, but there is
no provision for combining hours from them to
reach 15 hours or 25 hours of "engaged time".
The other conditions are: you must get and
provide proof of your own insurance with you
listed as the policyholder (not necessarily
through Covered California, apparently), it
cannot be sponsored by an employer, and it can't
be Medicare or Medicaid.... The authors of
"Rigging the Gig" found "as recent studies
(funded by the industry) have indicated, drivers
spend as much as 37 per cent of their time
logged into a transportation app, but without a
passenger." This means that most drivers would
have to log an extra 37 per cent more time on
the app -- more than 39 hours per week -- to
qualify for the top tier benefit of 82 per cent.
So, you will have committed yourself to paying
for an insurance plan that they will help you
pay for if you work enough hours (many of them
unpaid), but you have to pay for it yourself
until you get your quarterly payment from them
-- if there is one. God help you if you decide
to go on vacation/your car breaks down for a few
days/you have a family emergency or you get
injured and are unable to work. Not only will
you have no paid vacation, reimbursement for
repair expenses, or bereavement leave or sick
leave, you could also lose your premium
assistance, not for just one month but a whole
quarter.
Looking at Prop 22's "healthcare subsidy" as an
experienced rideshare driver, I immediately see
another big problem. I'm used to Uber's and
Lyft's performance-based bonus incentives, and
I'm also used to circumstances beyond my control
causing me to miss them. I still remember being
out driving at 3 am on a Monday needing just two
more L.A. fares before 4 am to score a big
bonus, and then catching one deep into Orange
County. Or worse, knowing that I did earn a
bonus, but someone at a call center refused to
give it to me over a location discrepancy
between the map display in the app and their GPS
records. So, now we're going to play that game
with my healthcare? Right. I stopped chasing
bonuses a long time ago because they are
unpredictable and unreliable as a source of
income.
This is Uber, Lyft, DoorDash, Instacart, and
Postmates' idea of healthcare. Cross your
fingers and take your best shot. These are not
rules for a new program they are rolling out.
This is what they are trying to put into law.
Their message: "If you want a stable healthcare
subsidy, try a taxpayer-funded one from Covered
California."
If you've ever heard the term "portable
benefits," this is what that will look like for
employees who get dropped from employee status
to a category such as the one that Prop 22 will
create, sometimes called a "dependent worker."
This is the future of work.
Keep all of that in mind as you read ahead.
The COVID-19 crisis has made conspicuous the
injustice communities of colour and immigrants
face when it comes to healthcare, especially for
app-based rideshare and food delivery workers
who are a majority of that workforce. In a May
2018 report released by the UCLA Labor Center,
of the 260 rideshare drivers UCLA surveyed from
around Los Angeles, 38 per cent were Latino, 23
per cent were Black, and 35 per cent were
foreign-born. Two years later, a description of
the app-based workforce in San Francisco emerged
in a study published by UC Santa Cruz Institute
for Social Transformation. In their survey of
643 app-based workers, 29 per cent were Asian,
23 per cent were Hispanic, 12 per cent were
Black, 13 per cent identified as multiracial or
other, and 56 per cent were foreign-born.
The Centers for Disease Control finds that
COVID-19 is taking a greater toll on those
communities because they have less access to
healthcare, sick leave, safe work environments,
and workers compensation. California,
unfortunately, is a potential case study. In a
July 15 article, the Los Angeles Times published an
analysis of statewide data finding that "for
every 100,000 Latino residents, 767 have tested
positive. The Black community has also been hit
particularly hard: for every 100,000 Black
residents, 396 have tested positive. By
comparison, 261 of every 100,000 white residents
have confirmed infections." L.A. County
officials were quoted as saying, "The underlying
reasons why communities of color are
disproportionately impacted by worse outcomes of
COVID is also related to longstanding structural
and systemic issues, including racism and
historical disinvestments, that L.A. County is
working to address and mitigate amidst this
pandemic." [...]
Meanwhile, drivers who are not eligible for
unemployment benefits or still need to work and
continue to drive have been forced to risk their
health and that of their families in order to
make a living. That is a choice that no worker
should have to make. Rideshare Drivers United
lost one of our own activists in San Diego to
COVID-19 in this way, and 28 other members
reported having been sick in an internal poll.
[...]
Early in the crisis the companies had been slow
to provide drivers with protective equipment
needed during the pandemic, including face
masks, sanitizer, disinfectant, and barriers
between drivers and passengers. [...]
Unemployment
The COVID-19 crisis has shown just how critical
unemployment insurance is to app-based rideshare
drivers and delivery workers. Since early this
year, the vast majority of rideshare drivers
have been put out of work due to the steep drop
in demand for their services and the health
risks associated with continuing to drive. [...]
Shortly after the COVID-19 crisis began, it
became apparent to lawmakers in Washington,
D.C., that a package of rescue legislation was
necessary and should provide money to people who
were put out of work. At that time, Khosrowshahi
(Uber CEO) lobbied Congress to provide some kind
of relief to his rideshare and delivery workers.
Ultimately this would come in the form of what
is known as Pandemic Unemployment Assistance
(PUA), a federally funded form of unemployment
insurance designed to get money to non-employee
workers who lost their income as fast as
possible.
The PUA unemployment benefit Khosrowshahi
lobbied so hard to "get" for his rideshare and
delivery workers is calculated on a worker's net
income, whereas in California the unemployment
insurance (UI) benefit is calculated on gross
earnings. Since app-based rideshare and delivery
drivers have such high expenses (that the
companies are supposed to reimburse drivers for
but don't) our net income is much lower than our
gross earnings. This means that our federal PUA
benefit would be much smaller than our state UI
benefit. [...]
If rideshare drivers and app-based delivery
workers applied for the fast, federal,
taxpayer-backed PUA benefit and not the state,
employer-backed UI benefit, this would help get
Uber off the hook for not paying into state UI
funds, even though Khosrowshahi knew it meant
his workers in states like California would get
a lot less money. That didn't work in New York
or, ultimately, in California where Rideshare
Drivers United not only worked to help thousands
of drivers navigate California's overwhelmed
unemployment insurance system to get their state
UI benefits, but also engaged with labor
advocates to cajole the state labor department
into reforms.
Click to enlarge.
Grievous Threat
A "Yes" vote on Proposition 22 would create a
permanent underclass of workers in California
and set a disastrous precedent for workers
everywhere.
If passed, Prop 22's concepts could infect
other industries and embolden other
billion-dollar companies to bankroll their own
initiatives using Prop 22 as a blueprint for
creating new classifications for their own
workers. In this way, companies could escape
labour laws and boost profits by shifting costs
to their workers.
In his August 10 op-ed in the New York Times,
Uber CEO Dara Khosrowshahi spoke of his vision
for the future of work claiming that labour laws
are outdated and unfair to his workers, and that
there needs to be a "third way" or a new
category of worker. He has the audacity to speak
for the needs of his own workers while heading a
company built on using technology to exploit
them. His is not the only voice with that
message here, having co-authored a similar op-ed
last year with Lyft's cofounders Logan Green and
John Zimmer.
This
twisted, disingenuous narrative of the worker
victimized by outdated
labor laws has been repeated in statements by
politicians, and in
opinion pieces in major business news outlets in
the Northeast. A
professor at NYU Stern School of Business and an
analyst for MKM
Partners turned up on Bloomberg TV on August 11
(1:08:00 mark) and 20
(1:50:15 mark), respectively. Both recited
Khosrowshahi's key op-ed
points, but they also blamed politics for Uber
and Lyft's troubles, not
the companies themselves for ignoring the law.
Both guests either
ignored or were oblivious to the influence of
the rideshare companies'
own workers (and Rideshare Drivers United) on
the course of events.
[...]
Summation
Uber, Lyft, DoorDash, Instacart, and Postmates
are trying to undermine the gains workers in the
United States have won through over 150 years of
struggle for self-determination and the rights
and protections we have today. These companies
need to be stopped here.
A Yes vote on Prop 22 will allow billion-dollar
outlaw rideshare and delivery companies to
increase their profits by changing the rules to
fit their broken, exploitive business models.
Proposition 22, if it passes, will require a 7/8
vote of the California legislature to amend or
repeal it.
Other countries have already begun to bring
these outlaw companies to justice by declaring
that their workers have employee rights.
Californians must participate by voting NO on
Proposition 22 and set an example for the rest
of our country to follow.
Rideshare Drivers United urges all California
voters to VOTE NO on Prop 22, stand in
solidarity with app-based workers, hold these
giant tech companies accountable, and help us
keep the rights, dignity, and respect we
deserve.
The future of workers depends on it.
For more information visit: drivers-united.org
and NoOnCAprop22.com
For the full article, click
here.
This article was published in
Number 82 - December 3, 2020
Article Link:
The Case for Voting "No" on CA Prop 22 (Excerpts) - Keith F. Eberl
Website: www.cpcml.ca
Email: editor@cpcml.ca
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