[By Carolyn Said]
Uber and Lyft drivers did not become employees when AB5, California’s landmark gig-work law, took effect Jan. 1. The ride-hail companies are battling to keep drivers as independent contractors rather than converting them into employees, as the law envisions.
On Wednesday over 100 Uber and Lyft drivers statewide are escalating the matter by filing wage claims with the state Labor Commissioner’s Office, The Chronicle has learned. They are seeking to be classified as employees and reimbursed for back wages, overtime and expenses for the past three years — amounts that for some drivers add up to over $100,000 each.
“Here we are a month into (AB5) and we don’t see big enforcement coming,” said Nicole Moore, who drives for Lyft in Los Angeles and serves on the organizing committee of Rideshare Drivers United. That statewide group, which numbers about 10,000 Lyft and Uber drivers, including a couple of thousand in the Bay Area, was behind this week’s action, which they are naming the “People’s Enforcement of AB5.”
“We’re going to do it ourselves,” Moore said. “We’re going to force these companies to comply with the law with the best tool the state gives us, the Labor Commissioner.”
AB5 and the 2018 California Supreme Court decision called Dynamex that it codifies make it harder for companies to claim that workers are not employees. Uber, Lyft and other gig companies like DoorDash and Postmates fiercely resist reclassifying their freelance workers, which would add about 30% to their labor costs. The companies say it would also destroy the flexibility that they and workers rely on.
Many drivers don’t want to be employees, said a spokeswoman for Protect App-Based Drivers & Services, which Uber and Lyft asked to speak on their behalf about the wage claims. Backed by $110 million from Uber, Lyft, DoorDash, Postmates and Instacart, the group seeks a ballot initiative to keep drivers and couriers as independent contractors but give them wage guarantees and some benefits.
The drivers filing for wage claims and employee status “don’t represent the overwhelming majority of drivers who want to remain independent contractors to keep flexibility to choose where, when and for how long they want to work,” spokeswoman Kathy Fairbanks said in an email. “More than 30,000 drivers and growing are supporting our ballot measure because they want flexibility along with the new wage and benefit guarantees the ballot measure provides.”
The campaign said it had collected 325,000 signatures as of Jan. 31, more than half of the 623,212 needed to qualify for the ballot.
While quickly getting so many signatures is noteworthy, it’s due to the campaign’s deep pockets, said David McCuan, a professor of political science at Sonoma State University who studies the California initiative process.
“It’s a pay-to-play game,” he said, noting that the amounts involved are ratcheting upward. “They will qualify (for the ballot) because all their (signature-gathering) efforts are professional.”
Signature gatherers hired by petition-circulation firms make $4 for each signature they collect for the gig initiative, the campaign said. McCuan said that is a high amount, although it’s surpassed by the $5 per signature that tribal casinos are paying for an initiative to allow sports betting inside their casinos and horse racing tracks.
Veena Dubal, a law professor at UC Hastings who studies drivers and is a vocal AB5 proponent, said she thinks the mass wage claims filed by Rideshare Drivers United are “a brilliant action.”
“I hope it sends a strong signal to regulators to stand up on the drivers’ behalf,” she said.
Groups of drivers will present their claims at state labor agency offices in San Francisco, Los Angeles and San Diego on Wednesday morning.
Any California workers who feel their employers did not pay them correct wages or benefits can file wage claims with the state agency. Although it lacks jurisdiction over independent contractors, freelancers who feel they were misclassified and should be employees can also file claims.
The process can take months or years and often ends up in a settlement rather than going to a hearing. Even if there’s a decision, however, it does not set a precedent. In 2015, for instance, an Uber driver named Barbara Berwick won a Labor Commissioner’s Office ruling that she was an employee along with $4,152 in expenses, but that decision didn’t have other ramifications.
“If a large group of workers (from a single company) file wage claims, that’s a trigger to send to the Bureau of Field Enforcement to investigate widespread systemic violations,” said Paola Laverde, a spokeswoman for the Labor Commissioner’s Office, which has created a fact sheet about AB5 classification.
Gov. Gavin Newsom’s proposed 2020-21 budget allocates $21.7 million to enforce AB5, including $17.5 million for the Dept. of Industrial Relations which oversees the Labor Commissioner’s Office to handle investigations and claims related to misclassification under the new law. The Legislature still must approve that proposal.
Wednesday’s actions could be the beginning of an onslaught of wage claims by gig workers.
A volunteer group called GetBackLostWages.com has formed to help guide drivers and other gig workers through the process of filing wage claims. It grew out of the Tech Workers Coalition, which seeks solidarity for tech workers, said Danny Spitzberg, a user experience researcher who coordinated the group.
GetBackLostWages includes attorneys, drivers and others who hope to simplify the “murky and strange process” of calculating what workers are owed, he said, as well as reassuring drivers that retaliation for filing wage claims is illegal.
“There is power in numbers in doing these claims together,” Spitzberg said. “Filing a wage claim is partly about getting back lost wages, but also about seeing yourself as deserving of rights, protections and the dignity and respect of not being cheated.”
The amounts involved could be substantial.
Daly City resident P.J. Ahern has been driving in San Francisco for several companies since 2013. He worked mainly for Lyft, putting in 70 to 80 hours a week. Including overtime and time spent logged into the app waiting for ride requests, he thinks it owes him $143,000 for the past three years.
“I believe I have been an employee since the day I first got behind my wheel,” he said, adding that he was angry that the companies are spending so much money on their ballot initiative, rather than on drivers. “We’re fighting to get our fair pay and our rights.”
Next, he said, he’d like to see drivers form a union, something that would require them to be employees first. “I believe a union would be one of the best tools for negotiations between the drivers and Uber and Lyft,” he said.
In fact, the Transport Workers Union of America has been working with Rideshare Drivers United since last summer. It hopes that if the drivers gain employee status and vote to unionize, it will be an affiliate of the TWU, a 150,000-member union that locally represents Muni drivers and Lyft’s Bay Wheels bike mechanics.
“We want to stop (ride-hailing companies) from this digital sharecropper model they’ve implemented,” said John Samuelsen, TWU president.
While Rideshare Drivers United cannot engage in collective bargaining under federal labor law, Samuelsen credited it as “a real union of workers collectively banded together to fight back against their employer.”
“This is an incredible moment when some of the lowest-paid, least-respected workers in our state are standing up for everybody,” said Moore of Rideshare Drivers United. “We are filing to force the state of California to enforce its own law and to ensure that Uber and Lyft and all the other companies that misclassify workers intentionally for their own profit pay us who are doing the work what we are owed under basic labor law.”