California companies wrote their own gig worker law. Now no one is enforcing it
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If anyone had any notion at all that any part of Prop 22 was going to work out for the workers, all I can say is keep that starry-eyed naivety, because the world’s a cold place and we could use some optimists, I guess.
Is it elitism to tell someone they don't know their own self-interest, and you do?
The rideshare companies clearly don’t share your philosophy - otherwise they would not have spent massive amounts of money promoting the proposition. It seems reasonable to me that they were trying to sell a piece of legislation to voters that would greatly benefit the rideshare companies financially while downplaying the negative effects many believed it would have on gig workers.
I'm sure there's many who will claim Prop 22 was solely voted in because the ride share companies badgered all their gig workers to vote it in. This is likely true to an extent, but AB5 also presented a real existential threat to many gig workers (and contractors in general such as myself): as employees, no longer could we write off business expenses against our taxes. For ride share drivers, this would be wear and tear on their vehicle, repairs, gas mileage, insurance, phone/cell service, and plenty of other things they have to pay for as their own business. And it's definitely not something the ride share companies would of started paying for either.
The incentive for the state made plenty of sense though: they could finally collect state unemployment taxes and do away with the business expense tax write offs.
Nice job by Uber/Lyft to plant that idea in people's minds!
https://www.dol.gov/general/topic/workhours/flexibleschedule...
Other jobs where you can do work whenever flexible shifts are fine, but that doesn't apply to taxi driving since there work aren't available everywhere at all times, you have to follow schedules to follow the demand since now the company has to pay you even when you don't have a passenger around.
By the way, restaurants (except for few good ones, like Zazie in SF) don't pay minimum wages by offsetting it with tips. But if employee reports less tips than minimum wage for the same hours, the employer must pay the difference to bump it to minimum wage anyway.
A waiter cannot decide to not work one day without getting approval from their bosses/managers
Department of Labor does NOT require employers to enforce any schedules. Some employers do, but they might as well just make a button "check in" / "check out", available any time. DoL is fine with that.
A waiter can have an agreement with their boss to work whenever they like. Boss most certainly disagree, but it's boss's decision to enforce schedules. DoL doesn't care. Boss can as well agree and put a whiteboard and let waiters check in / check out by writing on it any time. Same as Uber/Lyft can make the buttons in the app (they already do).
Of course, Uber/Lyft can, at their will, enforce the fixed schedules. But it will be obviously bad for their business. And no one requires them to do it, so naturally it would be beneficial to them to not enforce any fixed schedules.
Drivers decide when to work? Then the employer is obligated to pay a minimum hourly wage and minimum hours?
You could game that system easily. Just "choose" to work during the slowest times possible. Don't have to do any rides, but you get guaranteed pay.
At a certain point, some people are basically paid for being available when they're needed, not for the number of customers they churn through. That said, I've seen taxi drivers who got an hourly wage no matter if they got a rider or not go out of their way to get more fairs because they got tips and more hours including overtime hours.
And the employment agreement typically does not allow the employee to also work for a competitor during their employment. And there is nothing stopping the employer from changing or reducing the hours, unless the employment agreement has provisions about that.
You might think that Uber should hire some drivers on fixed shifts because there is some baseline of demand. The issue is, in a growing number of cities, AV's play that role.
There are some examples where employees have to work specific shifts but still get paid less depending on what they're doing. Notably flight attendants. They might not get paid while waiting at the airport if the plane needs maintenance prior to boarding.
That sounds reasonable, so long as their base pay is enough that they can support themselves at full time hours.
They do get paid more to fly, but it is of course a more skilled job than an Uber driver, and requires special training and testing that not everyone passes. And they cannot just work when they want to. They get assigned schedules by the airline.
There might be some ability to swap a flight with other flight attendants, and there might be some sort of bidding process of varying effectiveness depending on the airline, but at the end of the day it is not a flexible role like Uber.
"The Fair Labor Standards Act (FLSA) has no provisions regarding the scheduling of employees, with the exception of certain child labor provisions. Therefore, an employer may change an employee's work hours without giving prior notice or obtaining the employee's consent"
Which is the fixed shift the driver speaks of.
Granted, it, as you would expect, offers the caveat:
"(unless otherwise subject to a prior agreement between the employer and employee or the employee's representative)"
However, if you can't already negotiate what you want out of these businesses... After all, that is the only advantage to being an employee: The government will do a baseline amount of negotiating for you – but clearly isn't willing to here.
An independent contractor must be able to show full autonomy over their schedule to be recognized as such. As soon as a business hiring a supposed contractor tries to define the schedule, there is no question about the arrangement. The worker will be deemed an employee and not a contractor. This is one of the primary litmus tests used if there is any question about whether a worker is an employee or operating independently.
Lyft, Uber, et. al. would absolutely benefit from being able to dictate when you are expected to work. Not having enough drivers during peak usage is quite problematic to their business model. But they cannot exert that pressure if they wish to maintain that the workers are independent operators. Tradeoffs...
Yes, strong negotiating on the worker's end could see agreements made where the employee still has full autonomy over their schedule. This exception is noted. However, if a worker has that kind of strong negotiating power, who cares about being an employee? As before, the only advantage to being an employee is that the most powerful negotiator of all – the government – will step up and do some basic negotiating on your behalf. But if you are in a strong negotiating position yourself, you don't really need the help anyway.
No, where did you read that? There's no even mentions of "schedule" in "Borello test" [1]
Also see "Alexander v. Fedex Ground Package System, Inc.", where Fedex drivers were ruled to be employees, not contractors, regardless of schedules.
Again, Uber and Lyft can legally continue doing what they already doing -- not enforcing any schedules. DoL explicitly says that they don't require employers to enforce any schedules. Uber et al can incentivize more drivers with more money, just as they do today.
[1] Borello test: https://www.dir.ca.gov/dlse/faq_independentcontractor.htm
What you mean? It's right there:
The worker performs work that is outside the usual course of the hiring entity’s business
You're confused. As has been said multiple times now, an employee's schedule may not be dictated, but a contractor's cannot be.
> Again, Uber and Lyft can legally continue doing what they already doing -- not enforcing any schedules.
Of course. In fact, I have said exactly that several times now. Did you somehow forget to read the thread?
But why would Uber and Lyft want to do that? It would be quite advantageous for them to demand workers to show up at certain times, especially peak times that currently struggle with service availability.
They can't do that right now as it would prove that the workers are employees, without question (see your link). But if the workers were already established as employees, there would be no reason to stick with the status quo.
> Uber et al can incentivize more drivers with more money, just as they do today.
Nah. Incentivizing workers with the threat of termination if they don't show up is a much better business model. At least in a vacuum. Maintaining that workers are independent is more beneficial for other reasons, but, again, if that ends up lost, why on earth would these companies continue to needlessly offer more money to the workers? That would be just plain dumb.
Another common struggle was anyone getting paid flat sums under 1099's for things that involved thinking / writing - say you wanted to have some people give talks / present a paper at your "thoughts and talks" thing. No one wanted to keep timesheets or pay for time sitting on the toilet thinking of the talk.
Now of course there are tons of exceptions, but the way they are worded are going to be landmines for everyone.
I wouldn't be surprised to see more exceptions work their way into the law over time but cleanups / simplification I think likely too hard.
In a sense the only laws that exist are the ones that someone is willing to enforce.
Often then the highest bidder or the ones who have financial leverage over an agency, judicial member or law enforcement agent. Maybe a company or person donated to a local DA or a Judge. Maybe someone is getting a kickback for enforcing the law against a competitor but not you.
It extends beyond business law and regulations into criminal law as well. It's possible to be accused of a crime with no statute of limitations in the United States and then investigated your entire life where the investigation itself is used to punish you and take your life away. All because it was claimed you broke a law. Which enables an endless investigation to be started basically removing any rights you have. The Government can then say you do not have a Constitutional right to be charged if accused of a crime. Then maybe the DA decides to prosecute someone else for the same accused crime.
There are endless examples and excuses. DAs and police will say they have to prioritize cases. Agencies will say they can only enforce laws and regulations on certain people due to resources.
Behind the scenes though, that priority is usually driven by financial interests.
Everything is about money.
I thought this was telling as to the lies that these gig companies spew:
> Gig companies have said that, due in part to the initiative’s earnings guarantee, workers now make more than $30 an hour. But a May study by the UC Berkeley Labor Center found that, for California ride-hailing drivers, average earnings after expenses, not including tips, is about $7.12 an hour, and for delivery workers, $5.93. With tips, drivers’ average hourly earnings are $9.09 an hour, and $13.62 for delivery workers, the study found.
Its a confusing distortion and mess to a labor market that really needs a third categorization
Classifying independent contractors as employees just so you can extend corporate health insurance to them is lazy and patronizing, not to rehash an old debate but not everyone is a victim or aspires to be an employee.
and now this mess about how to enforce labor violations on Prop 22 gig workers?
repeal AB5 in its entirety and come up with something more holistic
And what you are quite conveniently omitting is that AB5 was a reaction to a court case (and it wasn't even about ridesharing!) that sent people scrambling. AB5 wasn't great, but it would have been amended and updated because California actually has a functional legislature. Instead, Prop 22 froze the process in amber and now everybody gets the garbage fallout.
Blast Prop 22 into atoms, and AB5 can be adjusted properly.
In addition, I got tons of political crap pushed to my phone about Prop 22 by the apps and Uber and Lyft should have been fined through the nose for doing so.
But, hey, as long as you have a couple billion in cash, you get to make your own laws. Ain't "disruption" grand?
You must be new here. There are homeless literally everywhere in LA and somehow "California actually has a functional legislature". A small example of dysfunction. You are living in a fantasy world.
AB5 was a massively blunt tool that overreached and messed with businesses and individuals that had zero to do with ride sharing. Prop 22 undid small portion of it, where in reality, the law needs to be repealed in its entirety and rethought with an eye to future and potential unintended fallout.
But specifically to homelessness, obviously no easy solutions since the problem has been allowed to go from bad to worse and more. But how about enforcing existing laws. The governor made a big deal about enforcing the law about clearing out the homeless from under the freeway bridges and some other public places, where it was getting out of hand. The media came, he had his publicity shot, the cops cleared out the homeless. Mission accomplished... and a week later, the homeless are back.
This is a specific example of feel good nonsense with zero follow through.
But the main problem is the endless funding for the homeless problem. In LA alone, the state has spent $6.5 billion in the last 10 years (number has been increasing over the years). This means, every year there is roughly $650 million to be doled out between businesses, local governments, activists, etc... Given that more homelessness results in more money to all these organizations, you would be hard pressed to ask them to actually solve the problem that feeds them. This problem is on the legislature.
Long term:
Amend the state constitution to defang the California Environmental Quality Act and the Coastal Commission with regard to new housing development
- Amend the state constitution to punitively remove local zoning privileges for 10 years on the first offense, permanently on the second, for any region that fails to have its housing element plan approved.
What laws do you think they should pass that would actually address the problem?
My sense (and I lived in the Bay Area for 27 years) is that it is because they have never worked.
It's almost as if removing them didn't solve their homelessness. If you ignore the actual problem and only make a lazy effort to address the most visible symptom of the problem being ignored than it's not really surprising when the symptom returns.
Look at the no fee law that conveniently exempted all restaurants for example. It's abundantly clear the legislature doesn't have the average voter in mind when it comes to the work it does.
It’s even more fascinating that said amendment only exempted gig economy works, which AB5 was crafted to specifically reign in - whole codifying a surprise 2018 court ruling for easier compliance.
Its still worth nothing that the legislature itself has also exempted many other trades since then.
And the 9th circuit just ruled that this doesnt violate the 14th amendment to exclude them. So AB5, AB2257, Prop 22 are all constitutional and in force.
I would like to see push notifications role in political outcomes more regulated.
I would like to see the 2018 case overturned if thats whats necessary to re-evaluate what AB5 aimed. The same simple majority of California citizens can do that.
How is it different from sending texts? Texts are also very cheap: https://aws.amazon.com/sns/sms-pricing/
I don't see the significance of this, but you can go on Amazon's console and type in a message to send just like with SMS'es. But I don't see how this makes a difference.
> and apps stand out more than a spammy sms
I'm not sure this is the case. App notifications are typically stacked behind each other under a long list of notifications on the home screen, while SMS's are shown prominently in the same texting app that people use to text their friends and family. Texts are also read out by Siri automatically while using headphones or while connected to a car, which is not true of push notifications.
I’m going to strongly disagree here, and say speech about an upcoming ballot proposal is absolutely political speech and enjoys first-amendment protections.
I have never understood this argument. I know it's one of Lorena Gonzalez's talking points, but it makes no sense.
The legislature and the judiciary are part of a system of checks and balances.
If a court makes a decision we don't like, we pass legislation to change the statute that the court used to make its decision. Case in point: when the courts ruled that UC Berkeley are pollution (due to noise impact), we amended CEQA to say that people shall not be considered pollution: https://legiscan.com/CA/text/AB1307/id/2814718
Instead of changing the statute upon which the court's decision was based on, what AB5 did was make it even worse than what the court ordered. There were all sorts of exemptions as hand-outs to favored political groups.
Besides, the true culprit to this is the WW2-era price controls on wages which made it so that non-wage benefits, like providing health insurance, were not taxable. In the end this has multiple undesirable effects: it tightly couples employment with health insurance coverage, which employers like as an additional barrier to the free movement of labor, and it decouples the cost of health insurance from the actual consumer, which healthcare executives like as an additional layer of obfuscation on an already complicated process.
In an ideal world "employment taxes" wouldn't exist at all (after all, don't taxes discourage the thing being taxed?), but perhaps more realistically we can stop this separate tax treatment, stop bundling healthcare with employment, and just pay people the difference. Employees can shop around for coverage independently and there will be a market force to drive those prices down.
unfortunately, more needs to happen for that to occur
the in-vogue approach is for large market participants, like Medicare and the VA to be able to negotiate prices with insurance companies. Some very insidiously clever law restricted those state plans from being able to negotiate, not only removing a market force but creating a massive distortion to support overcharging, and this has only recently been addressed and repaired
In an ideal world employment wouldn't exist, so employment taxes are moot anyway. In this less than ideal world, though, discouragement is the point. Generally speaking, the energy would be better utilized elsewhere. Employment is not the ideal state. The tax works[1] to see that energy only be redirected to employment where the usage of it is so compelling that it is still worth doing over and above the tax burden.
[1] Or at least tries to. In our less than ideal world implementations often fail.
I agree with your analysis of the situation here, but I'm curious why you think that the energy would be better utilized elsewhere. I get that in the "fully automated luxury gay space communism" scenario nobody would have to work (as you alluded to), but in the meantime, is it not a social good to encourage people to produce value for others and be compensated in exchange? Whether that takes the form of traditional employment or something else, it seems that a world in which value and wealth are created through labor and therefore human lives improved is the better one.
In other words, what is the "elsewhere" that you envision?
Of course, that's not exactly realistic. Maybe some day in the distant future we'll unlock a world where everyone can focus on capital creation, but in this less than ideal world in its current less than ideal state labour is still a practical necessity. But it is not preferable. We'd rather have the people creating capital. So, there is a balance to strike. While we obviously can't ban labour, we can attempt to limit its existence to only where it is most beneficial. It behooves us to try and disincentivize having workers doing "useless" work. If workers are going to toil in the fields, so to speak, it had better be worth it.
I will point out that minimum wage is another prong that tries to attack the same problem. It does outright ban employment if a certain amount of benefit to society is not being met, forcing workers to either find more beneficial work that can overcome the imposed restrictions or to go back to creating capital.
Now, I already hear you thinking: "But sometimes employees are directly involved in capital creation!" Right you are. In fact, I expect that describes most of the employed people here. We could chalk that up to unintended consequences. A law intended for "burger flippers" ended up being applied to engineers by virtue of us not doing a very good job of seeing different types of employment as being different with respect to labour rules and taxes. But I posit that there is something else to consider: A society that sees the capital creators have ownership over the capital they create is more ideal than a society that only compensates them for their work contribution. Much like before, it behooves us to disincentivize hiring workers when the people could be accepted as partners in the capital creation.