A New Lawsuit Seeks to Overturn a Measure that Denies Protections for Food Delivery Workers

A lawsuit filed Tuesday, January 12, seeks to roll back the damage a well-funded, voter-approved measure has done to the rights of food delivery and ride-hail drivers in California. According to the suit, Proposition 22 — the $218 million ballot measure from Doordash, Postmates, Instacart, and Uber that asserted that the tech companies shouldn’t be required to provide their drivers with the same worker protections required for every other employer in the state — violates the state Constitution, and despite its approval by voters, it should be overturned.

It’s only been a few months since Prop 22 triumphed at the polls. On the ballot for the landmark 2020 election, 59 percent of the state’s 11 million voters approved the measure, which was bankrolled almost exclusively by San Francisco companies reliant on thousands and thousands of so-called “gig workers”: delivery or ride-hail drivers who the companies classify as independent contractors instead of employees.

AB5, a California law that went into effect at the beginning of 2020, was intended to force those companies into reclassifying those contractors as employees, a move that would have given those workers the right to basic protections like minimum wage and unemployment insurance. Instead, the venture-backed (and, in most cases, unprofitable) companies struck back, spending hundreds of millions on a campaign to, essentially, get voters to agree that food delivery and ride-hail companies don’t need to follow the same laws that other businesses in the state do.

As part of that campaign, the companies falsely claimed that workers would lose the ability to set their own schedule (an assertion that isn’t part of AB5 or the state’s employment law) and that if the tech companies were forced to offer their workers employee protections, those costs would be passed on to customers. Unsurprisingly, after the companies won, they passed the costs of the campaign on to customers anyway.

At the time, labor rights experts said that Prop 22’s passage was a dangerous precedent for all of the state’s labor laws, with political science professor David McCuan of Sonoma State University telling KPIX that it “raises the tide of all ballot measures” and “makes the parallel route of direct democracy a playground that will be measured in the billions in a few (election) cycles.” According to McCuan and others, Prop 22’s success tells California companies that if they don’t like a law, then all they need to do is spend enough money to get voters to agree, and the law will go away.

That’s the precedent that the Service Employees International Union and SEIU California State Council say they’re trying to derail. In a suit filed this week in California’s Supreme Court, those labor groups, as well as three drivers and one ride-hail customer, argue that Prop 22 “impermissibly usurped this Court’s authority to ‘say what the law is’ by determining what constitutes an ‘amendment’” and that the true implications of Prop 22 were hidden “in language that most voters would not understand.”

In a media call on Tuesday, SEIU California president Bob Schoonover said that Prop 22 “denies drivers rights under the law in California and makes it nearly impossible for lawmakers to fix these problems.” He also warned that “if giant corporations are allowed to bankroll ballot initiatives that circumvent the California constitution, it sets a precedent that any right can be rolled back just by spending enough money.”

Ironically, the lawsuit doesn’t name the companies that sponsored Prop 22 as the defendants. Instead, it names the state of California and labor commissioner Lilia Garcia-Brower — in other words, two of the entities that most ardently supported AB5, the law that Prop 22 sought to upend.

Speaking with the SF Chronicle, Scott Kronland, an attorney for the plaintiffs, says that “a statute passes and the attorney general normally has an obligation to defend the statute, whether the AG agrees with it or not ... if the AG chooses not to defend it, independent counsel would be hired to defend it.”

“It’s also quite possible that some of the gig companies might choose to intervene to defend the initiative,” Kronland says. An unnamed attorney who spoke with the SF Business Times says that attorneys with Uber and Lyft will likely step in and take over for the state of California, which — in a separate suit filed prior to Prop 22’s passage — is still fighting the tech companies in court over their earlier refusal to follow AB5.

“Our case against Uber and Lyft is ongoing and we’re currently awaiting a decision on procedural matters regarding the appellate court’s decision in our favor from October,” a spokesperson for the California Attorney General’s office tells Eater SF via statement.

When contacted by Eater SF, the delivery companies referred us to the yes on 22 campaign, which in turn referred us to Jim Pyatt, a Modesto Uber driver affiliated with the campaign. “Voters across the political spectrum spoke loud and clear, passing Prop 22 in a landslide,” he says. “Meritless lawsuits that seek to undermine the clear democratic will of the people do not stand up to scrutiny in the courts.”

Pyatt’s not wrong: most courts are typically reluctant to overturn the will of the voters, but it’s not out of the question in California. For example, there’s Prop 8, which in 2008 was approved by over 52 percent of the state’s voters to (in its words) “eliminate the right of same-sex couples to marry.” Though OKed by voters, when legally challenged, California’s attorney general at the time, vice president-elect Kamala Harris, refused to defend the law, saying that the law was a violation of the state and the U.S. constitutions.

It’s a battle that the people behind this new fight to overturn a voter-approved prop are clearly trying to evoke, Schoonover suggested to media Tuesday, saying that “Like Prop. 187 and Prop. 8, Prop. 22 is an unconstitutional attack on Californians’ rights that if left unchecked will grant permissions to companies like Uber and Lyft to dismantle workers’ rights across the country.”