Our legal system is all but broken. Only collective power can fix it
Last week, former VP Joe Biden came out in support of gig workers’ rights in an unexpected but timely tweet. Gig companies, led by Uber, Lyft and Doordash, had just won certification of their ballot initiative to overturn California’s Assembly Bill 5 (AB5). It was good to see immediate push-back from the likely Presidential nominee.
As a White House spokesperson called for “human capital stock” to work through a pandemic, Uber, Lyft and other gig companies launched their “Protect App Based Drivers and Services” campaign. While laying off thousands of office staff, Uber and other gig companies poured money from their $100 million war chest into the production of glossy video clips featuring bizarre “testimonials,” apparently by drivers and delivery workers demanding the right to work for less than minimum wage without any sick leave, safety and health protections, indeed without even measures to ensure that they do not spread coronavirus to their clients.
In the meanwhile, California driver advocates are proving that without worker organizing and collective action, the law would just be a piece of paper. I spoke last week with Nicole Moore of the Los Angeles-based Rideshare Drivers United (RDU) about the day to day work her group is doing. Nicole explained that with historic levels of unemployment, people need help trying to access unemployment benefits and they’re calling her round the clock. Thousands of drivers are eligible for back pay as a result of AB5. RDU began a people’s enforcement campaign as they saw that cities were not taking action on wage claims. They began collecting resources and creating tools that allowed drivers to easily file back pay and unemployment claims. To date, RDU has filed more than 3,000 wage claims with the California state labor commissioner.
“I think between the money companies owe, and damages in the process claims, we are at about $930 million that drivers are owed,” Nicole reported. “That’s how much money the companies have actually pocketed over the years. All of us try to believe that when we come home from work and we have some earnings we are doing ok, but when you actually look at it, the companies owe us much more money.”
It’s almost as if companies want to leave gig workers with no choice but to take to the streets. A few years ago gig workers began turning to the courts, using a more patient approach to win minimal protections like the right to earn minimum wages. The California Supreme Court had already ruled in 2018 that gig work is work. But gig companies were unwilling to abide by the judicial ruling, pushing instead for a legislative fix that would undermine the ruling. Workers and advocacy groups pushed back, and their organizing won — at least temporarily — the protections in AB5.
The companies’ decision to ignore the earlier judicial ruling was consistent with their behavior around the world. I interviewed app-based drivers in multiple countries and they described the following corporate playbook. First, hire highly paid lawyers to contest any judicial rulings that don’t serve corporate executives’ interests. Second, appeal as far as you can. And failing that, use lobbyists to change the laws. This is happening not only in California, but in other jurisdictions around the world. But the tide may be turning in favor of workers.
In France, gig workers successfully waged a long legal battle to win proper classification as workers. After appealing all the way to France’s Supreme Court, Uber lost. The high court issued a historic ruling affirming that indeed, France’s Uber drivers were under the control of the company and therefore workers. As one legal analyst put it, the ruling in France could be a game changer not only for Uber but other gig companies, and not only in France but throughout Europe.
In the United Kingdom, a similar pathbreaking case is moving forward, and will be heard by the UK Supreme Court in a matter of weeks. Plaintiffs won a lower court ruling in the UK and survived several appeals, and as a result, all ride-hailing app drivers were declared to be workers. But Uber has still not implemented the ruling, despite losing the case at every level below the country’s highest court. As in California, UK drivers are owed millions in back pay. The UK Supreme Court may well issue a final decision in favor of the drivers. But the lead plaintiffs are not sanguine that the battle will end there.
I spoke with one of the plaintiffs, James Farrar, on May 29 and he noted, “Workers can not, ever, rely on the law. Law will serve the powerful. To make it work for workers you need to balance that power, and the only way to do that is by organizing and standing up collectively.” In France, drivers have also noted the need to keep organizing lest Uber turn to France’s legislature to attempt to create new loopholes and circumvent this ruling. James and his colleagues expect such a strategy to be Uber’s next step in the UK.
This is what is happening in California. The companies collected nearly a million signatures for the new ballot initiative to overturn AB5, and will be spending tens of millions on advertising targeting voters. Countering this advertising will rely on gig workers who are still organizing and still building power even during this pandemic.
The app-based platform model may simply not be a viable business model in today’s economy. So for the companies, retaining the ability to pay less than minimum wage, avoid taxes, and otherwise externalize costs may be an existential battle. But if workers win, the services we have come to enjoy will not disappear; indeed as Nicole and other advocates predict, the need for app-based, hands-free transactions will only increase, and perhaps more ethical business models would emerge. As Nicole noted, “This is a really important moment because app based work is going to become the way of everything in every work force. Health care, construction, other services are all going to become part of the gig economy and if we don’t figure out how to protect people who are deployed by an app, whose boss is an algorithm, we don’t have a good future.”
Unfortunately, the legal challenges are likely to continue. Corporations have long put their dollars behind efforts to ensure their power over politicians, courts and regulators. Lately they have also figured out how to use other platforms that explicitly refuse to correct for disinformation or even outright lies. (The “Protect” social media campaign appears to be bot-driven). Durable solutions to all these interconnected problems will require collective worker action.
You can hear directly from drivers and gig worker advocates about how they are fighting in court and in legislatures in Episode 3 of The Gig Podcast
If you are a driver in California and need to submit a claim visit Rideshare Drivers United’s resource page here
If you want to keep track of the fight for AB5 check out We Drive Progress and the #ProtectDriversNotCEOs campaign