Dozens of delivery and ride-hail gig workers marched on Uber’s Mission Bay headquarters this week, holding pro-union signs and chanting for change.
But unlike past gig worker protests over working conditions or the seemingly unending debate over their status as contractors or employees, Wednesday’s rally was different. They were announcing a new union made up of, for now, contract workers called the California Gig Workers Union.
But why form this kind of union now?
While the drivers may be considered contractors after voters approved Proposition 22 nearly two years ago, they hope that a court challenge to the constitutionality of the ballot measure, along with promising signals from the Biden administration, will allow them to be reclassified as employees entitled to benefits such as insurance and sick time.
And if that happens, they’ll be ready with a formidable union of drivers to bargain with some of the most powerful tech companies in San Francisco, Silicon Valley and the country.
Drivers for “Uber, Lyft, DoorDash, Instacart all the gig workers, we’re getting united against these corporations to get the benefits that we need and don’t have” like workers’ compensation, health care, vacation and sick days, said Hector Castellanos, who has driven for Uber and Lyft for about eight years.
But while unions adopted by a majority of employees can bargain over benefits and pay, those comprised of contractors cannot.
“They can unionize, but they cannot, if they’re properly characterized as independent contractors, bargain for wages and conditions of employment,” said William Gould, professor of law emeritus at Stanford Law School and a former chairman of the National Labor Relations Board.
That is because of antitrust laws.
For example, a truly independent contractor like a plumber could agree to a fee with a client to fix some broken pipes. But if a group of independent plumbers unionized and began setting rates, it would be considered a form of price fixing.
“Those who are classified properly as independent contractors, if they bargained on wages as a condition of employment, they would be engaged in a conspiracy to restrain trade unlawfully within the meaning of the antitrust laws,” Gould said.
There are potentially other ways under the law for contractors to collectively bargain over wages, Gould said, including if a state passed a law allowing them to do so. But with that unlikely in the near future, a union of, for now, contract workers can wield other powers.
“They could speak out politically. They could fund litigation designed to improve their conditions,” Gould said. “They can try to get legislators elected who are sympathetic to them.”
Asked whether part of the reason for the organizing was to amass political power and push to be classified as employees instead of contractors, Castellanos said, “Yes.”
The California Gig Workers Union hasn’t filed any official paperwork or held an election. Instead, it is a merging and renaming of two existing Service Employees International Union gig worker organizing efforts — We Drive Progress and the Mobile Workers Alliance.
Their timing is also fortuitous. On Tuesday, the Biden administration announced a new rule that has yet to take effect that would make it easier to classify workers as employees under federal law.
While it could be some time before it takes effect and could attract legal challenges, the federal rule would trump the state-level wrangling in California over whether gig workers like Uber and Lyft drivers are contractors or employees.
Ultimately, that issue could find its way to the highest court in the land, Gould said.
“One lesson we can garner from the gig economy disputes in this state is that litigation is king” and that Uber and Lyft have been very effective in getting their way, Gould said.
One advantage that employee unions have that unionized contractors do not is the ability to strike and to have the law on their side if a company were to retaliate against workers through firings or other actions.
A contract workers union doesn’t have those protections, Gould said. But if the law were to change and thousands of gig workers suddenly became employees, they could strike without fear of retaliation, potentially bringing multibillion-dollar companies to their knees through work stoppages.
“I don’t think we’re going to get to that point right now” as a union of contractors, Castellanos said, adding that as contractors, “we have to keep working in order to eat and get food on the table.”
But with the political winds blowing in favor of drivers becoming employees instead of contractors, that could change.
“We’re not yet to that point,” Castellanos said. “But let’s see what happens.”