A recent court ruling that favored gig work companies may have a silver lining for pro-labor groups.
Last Monday, a California appeals court ruled that Proposition 22 — a 2020 ballot measure that allowed Uber, Lyft, and other platforms to classify their workers as independent contractors rather than employees — was largely constitutional, reversing much of a lower court ruling.
But the court found that one part of the proposition wasn’t valid.
It’s a part that defined legislation on certain subjects, including unionization for app-based drivers, as amendments to the proposition. And amendments, the proposition declares, need to pass by a seven-eighths majority vote of the Legislature. That super, super, super-duper majority is a steep climb.
“If the Legislature wanted to enact collective bargaining legislation today, it would be free to do so by a simple majority,” said Stacey Leyton, an attorney with Altshuler Berzon, a law firm representing the drivers and Service Employees International Union in challenging the ballot measure.
Tia Orr, executive director of SEIU California, said that the drivers the union works with have “motivation and fire behind them” with the possibility of being able to unite with their coworkers and bargain collectively. Orr said there are several options that the drivers are considering in the wake of the ruling, and pursuing legislation that would allow drivers to unionize “certainly is one of them.”
But a lawyer representing the Protect App-Based Drivers and Services coalition, which includes Uber, Lyft, DoorDash and Instacart and is defending Prop. 22 in court, saw the Monday decision slightly differently.
If the Legislature passed a new collective bargaining law for app-based drivers by less than a seven eights vote, it could be challenged in court “and it would be up to a court to decide at that point if it is an amendment or not,” said Kurt Oneto, an attorney with Nielsen Merksamer, who is representing the coalition.
When reached for comment, Uber referred CalMatters to its statement about driver independence from earlier in the week.
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What exactly a union representing app-based drivers could negotiate over — if the rest of Prop. 22 stands — is also potentially up for debate. The initiative established minimum pay for the time between when a driver accepts a ride or delivery and when they complete it, for example. So could a union bargain over drivers’ wages?
“To the extent that Proposition 22 establishes minimums, a union could bargain to go above those minimums,” said Leyton. Unions often negotiate wages that are above wages in minimum wage law, she said, “so I would think that a collective bargaining law could authorize that.” But, she said, there could be a legal battle over that.
If lawmakers did pass a law allowing gig workers to unionize, that could also face challenges in court, said Catherine Fisk, a law professor at UC Berkeley who filed a friend-of-the-court brief in support of the union and drivers challenging Prop. 22. For example, gig companies could argue that collective bargaining by workers who are not employees is price fixing that violates antitrust law, she said.
The case (probably) isn’t over yet
The fight in the courts over Prop. 22 likely isn’t over, though, and being in legal limbo impacts the political calculus around passing new laws.
If either side appeals the recent ruling, and the California Supreme Court decides to hear the case, it could still strike down Prop. 22 in its entirety or uphold the whole thing, effectively rendering Monday’s ruling moot.
“That leads me to wonder whether there will be a serious push for legislation until that is resolved,” said Fisk.
The chairperson of the state Senate labor committee, Dave Cortese, doesn’t plan to take action until the case is resolved. “While we are disappointed by the court’s ruling, we are optimistic that the rights of rideshare and delivery drivers will be vindicated by the California Supreme Court. It would be premature to move legislation as we await that determination,” the Campbell Democrat said in a statement. “Regardless of the outcome in court, we will not stand for wealthy corporations buying their way out of labor laws and we are committed to pursuing all options to ensure app-based workers are protected.”
His counterpart leading the Assembly labor committee, San Jose Democrat Ash Kalra, said in a statement: “The fight to recognize gig workers as employees who deserve full protection under our labor laws is not over. As Chair of the Assembly Committee on Labor & Employment, I will continue to monitor the issue and explore all legislative options on the table.”
The clearest path for drivers to have full rights and the ability to vote for their own union would be for Prop. 22 to be struck down in its entirety, said Nicole Moore, president of Rideshare Drivers United, an association of rideshare drivers. That’s why “it’s absolutely critical that this ruling not be allowed to stand,” she said.