California’s Gig Worker Battle Not Over

Arriving passengers wait to board Uber vehicles at Los Angeles International Airport (LAX) in Los Angeles on Nov. 6, 2019. Mario Tama/Getty Images

Commentary

I’ve taken Uber or Lyft several times in recent years. They’re especially convenient if my creaking 2010 Camry is in the shop or I’m carless in a distant city.

I always talk to the drivers. Typical is one guy who drove on the weekend to get vacation money for his family. Another drove a Dodge Challenger as his regular job. I had heard the car wasn’t all that reliable, but he said he had no problems, just regular maintenance. He also liked the flexibility of working when he wants to—what’s called “gig” work.

Their jobs now are endangered—again. Assembly Bill 5, by Assemblymember Lorena Gonzalez (D-San Diego), which took effect January 2020, severely limited gig work of all kinds. But just last November, voters approved by a hefty 59 percent majority Proposition 22, which carved out an exemption, but only for part-time drivers at Uber, Lyft and similar companies.

Unfortunately, Superior Court Judge Frank Roesch recently threw out Prop. 22., bringing up its alleged conflict with worker’s compensation law. He wrote, “Proposition 22’s Section 7451 is therefore an unconstitutional continuing limitation on the Legislature’s power to exercise its plenary power to determine what workers must be covered or not covered by the worker’s compensation system.”

But that brings up a problem he doesn’t address: The entire worker’s compensation system in California is a mess. As I noted in my last article, Gov. Arnold Schwarzenegger signed a reform in 2003, but that was a long time ago. The reforms have been dissipated by numerous subsequent laws and court cases.

Indeed, it’s just this kind of refusal of the Legislature to do the right thing that prompted Gov. Hiram Johnson in 1911 to advance the initiative process into the California Constitution. As he explained, “I do not by any means believe the initiative, the referendum, and the recall are the panacea for all our political ills, yet they do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves.”

He had a good point also on initiatives not being a “panacea.” Just about every state initiative has major flaws, including the good ones. Prop. 22’s major flaw is that it was limited. It should have been extended to all gig workers, entirely repealing AB 5.

Indeed, last Sept. 4, Gov. Gavin Newsom signed into law Assembly Bill 2257, also by Gonzalez. It modified AB 5 to exempt many workers. Freelance writers were exempted, a relief to the many I know who were worried they would lose their livelihoods because of AB 5’s limitation of 50 writing projects a year. One writer even told me she was going to leave the state.

Interpreters were also exempted. That must have been a relief to one Spanish court interpreter I met when I was state Sen. John Moorlach’s press secretary. She was lobbying against AB 5 because it would kill her job and the flexibility it afforded her as a young mother.

She also said most interpreters are minorities for the obvious reason they know their family’s language when immigrating here. She mentioned Cambodian, Vietnamese, Chinese, Indian (Hindu) and other interpreters damaged by AB 5.

Now, thousands of Uber and Lyft drivers will be hurt should Roesch’s ruling be upheld.

Fortunately, the rule of thumb in California long has been: let the voters decide. It’s a democracy, after all. Hiram Johnson was a progressive, who favored letting the people have their say.

That’s why Prop. 22 likely will be upheld upon appeal. Two of the seven justices now are Republicans appointed by Schwarzenegger: Chief Justice Tani Cantil-Sakauye and Carol A. Corrigan. The other five are Democrats appointed by Newsom and former Gov. Jerry Brown.

But this seems a clear-cut case.

And the justices, too, can be ousted from office by recall or the “retention process.” Under the latter, justices face the voters in a yes/no election every 12 years, or sooner if it’s a partial term. In 1986, Supreme Court Justice Rose Bird and two other justices were not retained by voters. The main charge against them was they refused to uphold the death penalty, although their anti-business decisions also were cited.

Finally, the Legislature should do its job and entirely repeal AB 5. Then they could re-reform worker’s compensation law.

But nowadays, in this highly dysfunctional state, just asking politicians to do their jobs makes them faint.