When Proposition 22, the (sadly, successful) initiative to strip gig workers of rights, was on the California ballot in 2020, there was immense news coverage and analysis. As gig companies like Uber and Lyft prepare similar attempts across the country, with the goal of ensuring their workers remain non-employees, a similarly high-profile fight is brewing in Massachusetts, where worker, environmental, and racial justice advocates have formed a coalition to gear up for a major battle as a similar measure comes before voters in November.Last week, however, the Washington House passed a bill that contains many elements of those ballot initiatives, and this Monday afternoon, the bill passed out of the Senate transportation committee. Largely out of the public eye, the bill is quietly hurtling toward passage perhaps as soon as this week.
The bill (HB 2076) offers some gains for drivers, such as a minimum pay standard for a portion of drivers’ work time and allowing the formation of a type of worker organization. But it would also exempt Uber and Lyft from many important laws that virtually every other employer in the state must follow by flat out enshrining the misclassification of these workers as independent contractors rather than employees. The Tacoma diner, the Seattle coffee shop, and the supermarket in Spokane all are legally required to provide a safe workplace, pay employees for all hours worked, and pay taxes to support the state’s unemployment compensation system. Under HB 2076, Uber and Lyft would not have to do the same for their drivers.
The bill would also preempt Seattle and other cities from legislating on workers’ rights in such transportation network companies (TNCs), a restriction without precedent in the state. Passage of HB 2076 could also set the stage for other industries to seek similar carve-outs, and could adversely affect the landscape of workers’ rights nationwide.
Somehow, however, this nationally important bill is cruising under the radar. There’s been almost no public discussion about how it might affect drivers, passengers, or the environment. There was no review by the state Senate’s labor committee. Now, the Washington state Senate has until the end of the legislative session—March 10—to vote on it.
Uber and Lyft support the bill, and are pushing hard for its passage. But the bill’s supporters also include worker organizations like Teamsters Local 117 and the Washington-based Drivers Union; it was sponsored and supported by liberal Democrats in the state House. These labor-focused advocates share a commitment to workers’ rights and a genuine desire to improve drivers’ conditions. Their position here seems to be motivated in large part by fear that gig companies will mount an aggressive and lavishly funded ballot initiative campaign to buy themselves a law that’s more harmful to workers than HB 2076, as happened in California. One driver told Labor Notes reporter Luis Feliz Leon that the companies are “holding the gun at our heads with the possibility of an initiative.”
That’s a real risk and shouldn’t be discounted. (Note, though, that Proposition 22 was found unconstitutional and appeals are ongoing; note also that Washington’s single subject rule for ballot initiatives could potentially block an initiative this broad.) But a bill this sweeping requires more than fleeting or perfunctory review. Washington’s Senate should pump the brakes, avoid hasty action, and seek in coming months a comprehensive assessment of the full impact and potential unintended consequences of such a seismic change.
To be sure, compared with the current situation in which TNC companies classify workers as independent contractors to circumvent statewide employment laws, HB 2076 provides some advances for workers. Supporters say, for example, that it would raise worker pay outside of Seattle, which would be a genuine gain, and create a statewide structure for workers to challenge their termination, which would also be meaningful. But the trade-offs are considerable, and many questions remain unanswered.
Passage of HB 2076 could set the stage for other industries to seek similar carve-outs, and could adversely affect the landscape of workers’ rights nationwide.
For instance: What is the impact of establishing a new precedent of state preemption of local labor laws? The preemption provisions of HB 2076 are especially dismaying considering Seattle’s national leadership in passing and enforcing worker protection laws. (Colorado, in contrast, reversed state preemption of local labor standards in 2019.) Preemption here could also open the door to efforts to pass broader preemption of local laws generally, concerning the environment, LGBTQ rights, gun control, and more, as has occurred in conservative regions of the country.
The bill’s kid-glove enforcement measures allow the state Department of Labor and Industries to review a sample of records chosen in a manner “agreeable to both parties.” Such language is unheard of in labor standards enforcement; businesses don’t play a role in deciding which documents they disclose to agencies. What precedent is set by permitting this flaccid enforcement regime? What similar requests might emerge in other regulatory regimes?
Under HB 2076, drivers wouldn’t be eligible for unemployment insurance (UI) and the companies wouldn’t have to pay UI taxes like all other businesses in the state. Instead, HB 2076 proposes a work group to study the issue. But shouldn’t a work group convene—to assess the impact on workers, taxpayers, and the state as a whole—before carving workers out of unemployment coverage?
The bill also contains a sleight of hand similar to that of California’s Proposition 22: It defines work time exceedingly narrowly, including only time with a passenger in the vehicle, thereby omitting around 49 percent to 53 percent of workers’ driving time spent on the way to pick up a passenger, returning from a drop-off, cruising and standing by on available status, as well as other work time spent maintaining, gassing up, or sanitizing cars.
This narrow definition of work time kneecaps other protections in HB 2076; for example, it means that drivers would have to work nearly twice as long as other workers to accrue paid sick leave. Also, because of unpaid work time, drivers outside of Seattle would likely make around $10 per hour, substantially less than the state’s minimum wage ($14.49). The workers’ compensation coverage formula also omits large chunks of work time; would this result in increased costs to the public or to hospital charity care programs?
Drivers also wouldn’t be covered by the state’s workplace safety and health law. How would that affect driver and passenger safety during the pandemic and beyond?
Which brings us to the bill’s impact beyond drivers—its effect on the environment, consumers, and sexual assault victims. Studies have shown starkly adverse environmental impacts resulting from TNC companies, one reason why environmental groups staunchly opposed Proposition 22. Ideally—to minimize emissions, gas consumption, and traffic congestion—companies would have an incentive to limit the time a driver rides without a passenger. But quick customer response requires a ready supply of cars without passengers constantly cruising around. By failing to make companies pay for this time, the bill facilitates continued environmental harm. HB 2076 also restricts liability for personal injuries caused by drivers, while also sharply reducing insurance coverage requirements for TNC rides. Representatives from the state insurance commissioner have raised serious concerns about inadequate coverage requirements, which could leave accident victims on their own. And the state’s Association of Sheriffs and Police Chiefs raised concerns that the statute’s background check requirements were insufficient. Given the companies’ history of sexual assaults both of drivers and passengers, it’s important to understand fully how HB 2076 will affect victims.
In addition, what are the racial justice implications of carving out from legal protections a workforce that is largely composed of immigrants and people of color? Law professor Veena Dubal, an expert on the industry, has described such exclusions as a “new racial wage code.” Concerns such as these are why a range of environmental, racial justice, consumer, and other groups, ranging from the Sierra Club to the ACLU, have joined the Massachusetts Is Not For Sale coalition opposing the gig company ballot initiative there.
What industries would be next in line for a similar bill in Washington? HB 2076 adopts a definition nearly identical to that of Proposition 22; it’s folly to think that other industries won’t seek similar legislation or threaten costly ballot initiatives to reduce the standards they must meet. Delivery workers would most likely be the next at risk; they’re included in the upcoming Massachusetts ballot initiative, and they were covered by Proposition 22 (unionized supermarket workers lost jobs there as a result). This would be particularly unfortunate in Washington right now, given that legislation creating a minimum pay standard for delivery workers may be introduced in the Seattle City Council imminently. Health care workers also could be next; there are already apps offering them as independent contractors and a ballot initiative (now withdrawn) covering them was recently proposed in California.
Finally, how would this bill affect the nationwide landscape regarding gig worker rights? A broad coalition, Massachusetts Is Not For Sale, has been gearing up for a fight against that state’s initiative. And across the nation, gig workers have been taking on, and sometimes winning, battles against their misclassification as independent contractors. The California and Massachusetts attorneys general both sued Uber and Lyft for misclassifying workers; the San Francisco district attorneys sued DoorDash on the same basis. New York’s highest court upheld a Labor Department decision that Postmates workers were employees entitled to unemployment insurance. The Pennsylvania Supreme Court found that an Uber driver was not, in fact, self-employed. Meanwhile, Proposition 22 is under appeal in California. Could a hasty law in Washington damage these efforts and undermine gains, ultimately serving as a replicable national model for reducing or eliminating hard-won rights that have existed since the New Deal?
There are plenty of clichés about legislation: about making the sausage, the perfect not being the enemy of the good, and half a loaf being better than none. They all have some truth, but it’s impossible to make that half-loaf assessment without careful consideration of all the facts. Washington state senators should fully analyze this proposal with the gravity it requires, and that means serious study, not a race to the finish line.