In investigating Uber and Lyft's hail business for allegedly violating an employee classification law, the California attorney general is taking on what has long been the jewel of the on-demand economy. How the state's top attorney awards could determine whether other parts of the industry are similarly affected – particularly fast-growing on-demand grocery and grocery delivery companies.
The dispute over whether hail drivers should be treated as employees or as independent contractors as they have long been treated by Uber and Lyft in response to new California law is heated. Last month, under court orders, Uber and Lyft threatened to stop hailing in California before being granted temporary reparation.
If the companies had ceased their services in the state, Uber would have announced it would have continued to operate the food delivery service Eats, which was a breakout star for the company during the pandemic. Similarly, Eats similarly treats employees as independent contractors and must adhere to the same California Worker Classification Act known as AB-5, which is designed to make it difficult for companies to classify workers as independent contractors.
The law, which went into effect January 1, codified an "ABC" test resulting from the 2018 Dynamex ruling of the California Supreme Court. Among them, employers must meet three requirements to demonstrate that their employees are independent contractors, including the fact that the services provided by the employees are outside the core business of the company.
California MP Lorena Gonzalez, who drafted the bill, said AB-5's intent was to narrow down who the Dynamex decision covered – with the on-demand gig economy being one of those goals.
Although they have been in place since the beginning of the year, it wasn't until May that the attorney general and a coalition of city attorneys began looking for the best-known companies in the industry and their original services.
According to William B. Gould IV, a law professor at Stanford University, "it certainly makes a lot of sense for the AG to put many of their marbles in the Uber basket".
"You are dealing with a company that has been dealing with the rule of law for some time and that believes there is no constraint they cannot escape," added Gould IV, former chairman of the National Labor Relations Board. added.
Jenny Montoya Tansey, political director at the Public Rights Project, a not-for-profit public interest nonprofit that has been involved in enforcement efforts in California, said another factor was that "the drivers have organized themselves into numbers and are doing a really convincing job Spread their stories So that regulators, enforcers, and policy makers understand some of the experiences drivers have. "
Montoya Tansey added, "The delivery of food has not escaped the notice of AB-5 enforcers."
Other California litigation has begun to eradicate the similar alleged misclassification of on-demand grocery and grocery-delivery workers that have only diminished as consumers rely on them to help public out in the ongoing public health crisis Avoid spaces.
Prior to AB-5, San Diego City attorney Mara Elliott filed a lawsuit against Instacart, the on-demand startup that supplies $ 14 billion worth of groceries. The case is still ongoing. More recently, in June, San Francisco District Attorney Chesa Boudin filed a lawsuit against DoorDash, the $ 16 billion food delivery startup.
“The delivery of food is in demand today more than ever. Billions of dollars worth of grocery businesses are benefiting from this crisis while they exploit their drivers and deny them a living wage, unemployment insurance, sick leave and other basic workplace safeguards, "San Diego Rep. Gonzalez said in a Statement to CNN Business. Praise for Elliott and Boudin's actions.
“I hope other officials will follow suit. These companies must be subject to the same standards as any other law-abiding company in the state, ”added Gonzalez.
The decision to seek out deep pocket companies, and which ones, will depend on the resources of local officials.
“That was an uphill battle. It's whenever you take over billion dollar industries – there's a lot at stake for them, ”San Diego-based Elliott said of the lawsuit against Uber and Lyft during an August event with the Public Rights Project.
California Governor Gavin Newsom's budget has earmarked $ 20 million for AB-5 enforcement. However, it's unclear if it will target other companies while the case against Uber and Lyft unfolds this fall. The attorney general declined to comment on their possible legal strategy.
Of the Instacart lawsuit, Elliott said it was "a little reluctant at first and that's because this is a big argument for an office like ours," adding that they only have three litigators.
The threat to the combined on-demand business model is obvious. Uber, Lyft, Instacart, DoorDash, and Uber-owned Postmates poured more than $ 110 million into a referendum called Prop 22 in November that would exempt them from the law and give drivers some extra perks.
In addition, Uber and Lyft are facing lawsuits from the California Labor Commissioner's Office of alleged wage theft by misclassifying their on-demand employees as independent contractors instead of employees.
Beth Ross, a San Francisco workforce attorney who led a high profile worker misclassification case against FedEx, said it was "everyone's guess" whether other on-demand food and grocery delivery cases will emerge in the meantime.
"The city's lawyers in San Diego, Los Angeles, and San Francisco have flagged the Uber and Lyft cases," said Ross. “Will you be filing more public enforcement cases? I would be surprised because it is a resource issue. You may be waiting to see what happens. "
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