“It’s one, two, three strikes, you’re out, in the old ballgame.”
And so it is in California where a big-money ballot campaign written and financed by the Big Gig employers, Uber, Lyft, InstaCart and DoorDash struck out the state’s three institutional pillars of democracy, the courts, the legislature and the governor, all of whom opposed Proposition – a.k.a. Prop 22. The vote wasn’t even close. The Gig Employers Exploitation Allowance won by 17 points.
A bit of history: in 2018, the California Supreme Court was asked to decide – were gig workers independent contractors or company employees? The stakes were high. By one estimate, the ride services Uber and Lyft had been saving something on the order of $70 million a year by refusing to pay into the state unemployment insurance fund. They didn’t have to, they claimed, because their drivers were not company employees, but independent contractors.
The court, in what’s known as the Dynamex decision, said if gig employers can set a worker’ hours, and the conditions of their work – like Lyft and Uber telling drivers whom they could pick up, when and where, and even dictating what they must wear and what kind of car they can drive, then their so-called independence is empty and they are employees. Case closed. But Uber and Lyft ignored the ruling.
Such defiance of the State Supreme Court got the California Legislature into the act and in 2019, it passed AB 5, essentially reinforcing in detail the Court’s decision. Uber and Lyft again refused to obey the law and continued to stiff the state unemployment insurance fund.
This meant, when COVID-19 hit and many drivers were laid off, they got no state unemployment insurance…just a one-time federal payment. For them, too, the stakes are high.
But the Gig bosses had a final pitch, directly to the people of California, writing and selling Ballot Proposition 22, and backing it with a $200 million multi-media ad campaign. The courts had had their say, and so had the legislature and many Democratic law-makers and Governor Gavin Newsome opposed Prop 22. To no avail. Their arguments were drowned out as were outspent 10 to 1.
In the weeks before Election Day, anyone who used their apps to hail a Lyft or Uber car or put in for a DoorDash delivery had to endure banner smartphone headlines in favor of Prop 22 before they could place their order.
And often, with the food or the cab receipt, came a handbill arguing for the proposition. Californians watching TV or firing up your smartphones were bombarded by what our guest today, Greg Bensinger of the New York Times Editorial Board called “relentless and often disingenuous ads, text messages, push notifications, [and] emails.” Which worked.
The result was described by Robert Reich, the UC Berkeley Public Policy Professor and former Labor Secretary under Bill Clinton as “great for employers, but it’s a huge loss for workers.” The success of the Prop 22 campaign, Reich said, “will encourage other companies to reclassify their workforce as independent contractors, and once they do, over a century of labor protections vanishes overnight.”
Greg Bensinger is a member of the Editorial Board of the New York Times. Before joining the Times, he was a reporter covering algorithms and artificial intelligence for the Washington Post, and before that a reporter on the technology beat for the Wall Street Journal.