“It’s not a driver shortage, it’s a driver strike:” How gig workers organized against Prop. 22 before the California Supreme Court called it ‘unconstitutional’

By Luke Wrin Piper ::

July 21 saw gig workers across the country strike, demanding what they see as the bare essentials of working life that gig giants Uber, Lyft, Instacart and others have denied them. “I think that it’s the most successful the Bay Area has seen in a coordinated strike action. It was great!” said Erica Mighetto of Rideshare Drivers United, an independent association created by workers in San Francisco.

The local action gained the support of the Taxi Workers Alliance, the People’s Strike and the Tech Workers Coalition, who spoke alongside the drivers of RDU, one of the catalyzing groups.Their message was simple: They demanded an end to the “unfair and unlawful” labor practices of gig companies, protested California’s Proposition 22 – a law voters passed last November stating gig workers are not covered by certain state labor laws – and called for Congress to pass the PRO (Protecting the Right to Organize) Act..

Then, on Aug. 22, the California Supreme Court ruled that Prop. 22 is “an unconstitutional continuing limitation on the Legislature’s power” to determine workers’ compensation and is therefore “unenforceable.” 

Gig drivers can work well over 40 hours a week (many drive twice that), yet are deprived of overtime pay and other labor protections. Prop. 22 stipulated that gig companies had to provide health coverage if the driver averaged 25 hours a week. However, that number consisted exclusively of time spent engaged with a rider, which the UC Berkeley Labor Center found amounted to 67% of a driver’s actual working hours.

While only a state-level decision, the Supreme Court ruling has implications for gig workers across the country. According to the International Labor Organization there were 55 million gig workers in 2017, making up 34% of the American work force. Those numbers include independent contractors besides drivers. A study commissioned by Lyft and Uber in 2018 found that the two companies are responsible for 13% of all vehicle miles traveled in San Francisco County and 3% in Los Angeles County.

The decision comes as the COVID-19 pandemic continues to rage. The workers covered by Prop. 22 have become essential. Gig services began as a convenience. With the pandemic, convenience became a necessity as contactless delivery allowed immune-compromised people to avoid crowds and allowed people in general to travel without rolling the dice on public transportation. Gig workers became an essential piece of the way people adjusted their behavior to mitigate the spread of COVID-19. 

Uber has vowed to appeal the Supreme Court decision, seeking to continue to classify its workers as independent contractors and exclude them from coverage by state labor laws mandating minimum wage, overtime pay and collective-bargaining rights.. 

Prop. 22 was the most expensive ballot measure in California history, costing over $205 million. Doordash, Lyft and Uber each put in $30 million into ensuring its success. But the expenditures were just a small fraction of their earnings. Uber pulled in $14.1 billion in revenue in 2019, according to the company’s annual report. That year, Uber’s initial public offering was valued at around $75 billion. Uber raised $8.1 billion from its IPO alone. When Lyft went public in March 2019, it was valued at $22.2 billion. The expenditures paid off at the time: Prop. 22 passed with 59% of the vote.

And despite the Supreme Court decision, Prop. 22 seems to have had a ripple effect across the country: Legislation proposed recently in Massachusetts would explicitly designate gig workers as independent contractors, just as Prop. 22 did.

ACTUAL CONDITIONS FOR GIG DRIVERS

At face value, gig work is extremely attractive. You set your own hours, you don’t have a supervisor watching you work and the pay is immediate. Uber and Lyft offer a taste of life as an entrepreneur, the only requirements being a driver’s license and a self-starter attitude.

“In the U.S. we have this culture of freedom. So when the companies chose ‘independence’ and ‘flexibility’ as their buzzwords, it was really divisive among drivers,” said Mighetto, a RDU board member. Mighetto and her partner, both rideshare drivers, can’t make enough money to rent an apartment, so they often camp, renting Airbnbs when the weather or air quality is harsh. 

Many drivers describe the conditions of driving for companies like Uber or Lyft as bleak. Drivers’ rights groups have calculated that the companies can take up to 70% of the fare. Drivers don’t see what riders are being charged, and the percentage kept by the companies has been reported to fluctuate regularly. “You are the one who’s up at 4 in the morning, paying all the costs,” said Esterphanie St. Juste, a gig driver and RDU member. “[But] it’s your car, your gas, your insurance, and it’s you who’s awake at 4 in the morning to take those airport rides.” 

St. Juste started driving for Uber in Southern California in summer 2015. In the early days of the gig economy Uber and Lyft needed to establish a foothold in local markets, and when St. Juste started she was earning $1.20 per mile ($2 during surge hours). For that pay, she put up with the demanding conditions. In the infancy of rideshare work, full-time drivers regularly reported annual incomes of $50,000-$60,000 after taxes.

Her work day would start at 5 p.m. on a Sunday, lasting to 2 a.m., when the bars closed and things died down. She would then rest for two hours at a gas station and start up again at 4 a.m. to catch the Monday predawn airport rush, working until noon. The next day, her pattern would repeat.

​​”It’s not healthy, but it’s not set up to be healthy. It’s set up for the companies to profit and to keep the drivers powerless,” St. Juste said. She averaged 66 hours per week, for which she received no overtime pay, and paid her own medical and work expenses. 

“I’ve known people who’ve driven 77 hours a week … working between two platforms; a 17 hour shift between two companies,” St. Juste said. “You can make money, but you have to work like a dog.”

When COVID-19’s presence was confirmed in California in the beginning of 2020, St. Juste stopped driving. At the end of her time as a driver, she said, she was making less than $6 an hour after expenses – less than half the state’s minimum wage for direct employees.

St. Juste is far from alone. RDU was formed as gig drivers began to speak to one another and organize in the cell-phone lot of LAX, as they waited in line to pick up passengers. Airport rides were often some of the most lucrative and consistent rides. However, rates paid by Uber and Lyft for airport rides have dipped as low as “32-36 cents” per mile, and with gas approaching $5 a gallon in California, drivers’ net income is dropping. 

Other gig companies have cut rates, too, gig workers say. Kelly Harris, an Instacart shopper in Ohio and founding member of Gig Workers Collective, took part in the July 21 strike.

“I have to pay self-employment tax,” Harris said. “I have to pay my own health insurance and commercial car insurance. Instacart saves money because they don’t have a fleet of cars, they don’t have to pay for commercial insurance and they don’t pay any benefits.”

Instacart receives orders from customers and assigns them to workers called “shoppers,” who physically go to the store and shop in the place of the customer. Shoppers are often assigned multiple orders bundled into “batches” in the same trip to the store, and then deliver them to customers. 

Harris claims that when she first moved 40 minutes outside Pittsburgh, she was able to make up to $60 for an hour and a half of work. But since Instacart began reducing drivers’ pay rates and local markets became flooded with an overabundance of new shoppers, she gets $25 to $30 for the same amount of work. A three-order batch often goes for only $7.

Despite the drop in rates, people still believe Instacart’s promise of fast money. 

“People say, ‘I need this money, my cell phone bill is tomorrow. I need 20 more dollars or 50 more dollars,’” Harris said. “‘I’ve got to go out and work today until I make it.’ And they’ll run their cars into the ground.”

At the start of the pandemic, GWC staged a walk-off to demand personal protective equipment. Only after the action did Instacart supply it, workers said. 

Even then, “the mask that I got – you could see through it,” Harris said. “I was never able to get another safety kit. They’d always cancel my request.”

Instacart did not respond to requests for comment.

The new CEO of Instacart, Fidji Simo, recently wrote in a letter to the shopper community, “I have a health condition that made it risky for me to go to stores during the pandemic, and I can’t tell you how grateful I was every time one of you showed up to my door to help me feed my family while keeping us safe.”

In response, GWC published an open letter in which shoppers demand hazard pay instead of using tips to supplement income, and restoring the base pay for each order to $10. The company had lowered the minimum from $10 to $7 in 2017 and shoppers accused Instacart of stealing their tips. “These are simple requests, but each time the company gives us one thing, they take something else away,” the letter said.

Instacart claims shoppers have gained an additional 30% in earnings. Uber and Instacart have released statements quoting a recent online survey of 378 California Uber and Uber Eats drivers, in which 82% of the drivers say they were happy Prop. 22 passed.

Tyler Sandness, a RDU organizer in Southern California, calls 2019 a watershed moment for gig workers. “As the years have gone on,” he said, “people were working more hours to make the same amount of money.” 

When the pandemic started, federal relief bills allowed independent contractors to receive unemployment benefits. But when pandemic-paused drivers began applying for them, the companies refused to provide information on the hours drivers had worked and the money they’d earned. Drivers had to report their earnings without any verifying information from the employer. “On top of all the other problems that unemployment was having at the time, it was just another hurdle,” Sandness said. 

Drivers for Uber and Lyft have continued to work through the dangers of the job and the pandemic, regularly in situations where the likelihood of transmission between passengers and drivers seems high. In one case, Khaled Zayyid, an Uber driver who had been working up to 80 hours per week, contracted COVID-19. He died in July 2020, leaving behind his spouse and two children. The family applied for state death benefits and was denied. The state said Zayyid was not an actual employee at Uber, only an independent contractor. 

According to the Los Angeles Times, Uber claimed the Zayyid family had not reached out to it directly for help. The company had, however, set up a general payment structure for drivers who had contracted COVID-19 or had been ordered to quarantine. The minimum payment was $50, with a maximum of $459 in Los Angeles and $136 in Rio Grande Valley, Texas.

RIDESHARE DRIVERS ORGANIZE FOR CHANGE

Rideshare drivers, unions and their supporters have waged a long campaign to legislate minimum workplace standards. Their first victory came in 2018, when a Los Angeles courier service, Dynamex Operations West, Inc., was taken to court by a group of workers who had been labeled as independent contractors. The plaintiffs asserted that they had been misclassified and therefore denied overtime pay, expenses and wage statements. The California Supreme Court ruled in their favor. The next year, the state Legislature passed Assembly Bill 5 in an effort to codify the Dynamex decision in law and to create a standardized rule for distinguishing between independent contractors and employees, called the ABC test.

Rideshare workers and labor organizers lobbied for the passage of AB 5 to force gig companies to recognize workers as employees. The companies responded by putting Prop. 22 on the ballot. The proposal was to reclassify gig drivers as independent contractors by removing them from the application of the ABC test.

Gig Workers Rising, a group founded in 2018, had an active role in the “No on 22” campaign. Sandness called the proposition “a gut punch, because we fought very hard to get AB 5 passed. And it wouldn’t have passed without drivers telling Assembly members that it was the future of their livelihoods.”

In the campaign for AB 5, and then against Prop. 22, drivers pointed to the impact of the gig economy on people of color.

“There are Brown and Black folks who are left with no protection,” said Cherri Murphy, a minister at Speak Life Ministries and a gig driver and organizer for GWR. “At a moment’s notice you can get deactivated without any recourse, without any process. We’ve seen in news reports where Brown and Black folks have been attacked, with no redress … folks who’ve died with no compensation. 

“How do we get out of it? There’s a formula called solidarity.” 

But solidarity is not easy to foster. According to Murphy, one organizer pulled support and resources from the labor coalition when activists wanted to address a recent police killing in the East Bay, which the organizer said distracted from addressing the concerns of essential workers.

“We’ve got to do our homework around race,” Murphy said, “if we’re going to create solidarity.”

RDU and other gig worker groups continue to organize, believing that solidarity is a key to their efforts’ success. Gig workers in California may not unionize because they are not recognized as employees and there is technically no workforce to organize. And under federal law, freelance and contract workers are mostly considered business owners, so bargaining could land them in hot water with antitrust enforcers. 

In traditional workplaces, employees may join a union. Although independent contractors have no legal process for forming unions, many believe that unions are part of the solution to their problems. Unions, in turn, find common ground with drivers in challenging the corporate drive to expand the independent contractor status to jobs where unions are well established. Ruben Bustillos, recording secretary for Teamsters Local 70 in Oakland, worked on the “No on 22” campaign and is trying to organize gig workers into the Teamsters. “[Prop 22] really made it harder for us to organize,” Bustillos said.

Organizing drivers has also proved difficult in some ways because many have grown accustomed to the freedom promised by the apps. The companies crafted their Prop. 22 campaign around a pro-worker message: that people want flexibility above all else.

Meanwhile, the expansion of independent contractor status has enabled companies to replace directly hired workers. The Albertsons and Vons supermarket chains have switched from employing in-house delivery drivers to using Instacart. That has eliminated union jobs, while Instacart workers go without the wages or conditions a union contract guarantees to Albertsons’ and Vons’ direct employees.

Both unions and gig worker groups believe the PRO Act can reverse this trend, and the July gig worker strike even made its passage one of the action’s demands.

The PRO Act would end right-to-work laws in 27 states (plus Guam), set penalties for illegal retaliation against employees participating in union drives, guarantee that unions have access to speak to workers at work, enforce the bargaining rights of newly unionized workers, ban companies from discriminating against workers based on their immigration status, and set up an easier process for workers to gain recognition for their unions. By making it easier for workers in general to organize unions, the act would reduce the barriers for gig workers as well, its supporters believe. 

Gig work is some of the most accessible work in the country. People can get a job as a driver or shopper even without a higher education. But it can leave workers vulnerable to poor working conditions and, instead of resisting, many people eventually throw up their hands and go somewhere else. Others, however, have no other option and simply endure.

Yet workers continue to organize to force changes to a system that pours seemingly endless resources into keeping workers helpless and broke.

And the power of the companies and their ability to use their enormous wealth to shape the world is limited, as the Supreme Court decision makes clear. Meanwhile, the structures of communication built by the companies themselves, the apps workers use every day, are also being used by organizers across the country to coordinate large-scale strikes, as they did on July 21. Drivers, no longer fully in the dark, are revealing the ugly reality they’ve lived with for years. Legislators are listening, as they did when they passed AB 5, and the courts are taking a hard look at the well-funded measures pushed by the companies. 

“There is a moral consciousness that’s growing in America as a result of what’s happened in this last year,” Murphy said.“And that’s the momentum that we need to push.”