While workers rallied outside the state Appellate Court in San Francisco Tuesday morning, a three-judge panel grilled lawyers inside about the provisions of Proposition 22, which in 2020 classified rideshare drivers as independent contractors rather than employees.
The judges, all appointed by former Gov. Jerry Brown, referred back to arguments offered by one attorney or another, and seemed to find them reasonable, but displayed little inclination toward the outcome of the verdict that they will issue within 90 days. If they were showing their hand, the attorney for the gig workers battling Prop. 22 wasn’t seeing it.
“It’s clear that they’re interested in the case, they read all the briefs, and they asked the attorneys a lot of questions, but there’s no way to know until they issue that decision,” said attorney Scott Kronland in an interview with Mission Local after the proceedings.
In November, 2020, Prop. 22 was approved by 59 percent of voters in California following more than $200 million in donations from gig companies such as DoorDash, Uber, Lyft, and Instacart. It classifies app-based ride-hailing and delivery drivers as independent contractors rather than employees, and thereby exempts the companies from providing employee benefits.
In August of last year Alameda County Superior Court Judge Frank Roesch ruled Prop. 22 both “unconstitutional” and “unenforceable.” During the process of its appeal, Prop. 22 continues to be applied by the companies.
In contrast to the park outside the court, where the workers were in a frenzy, there were only three app workers taking in the proceedings in the courtroom, all seated in the last row of the auditorium. The hearing’s oral arguments dealt primarily with abstract legal technicalities regarding the three reasons Judge Roesch found Prop. 22 unconstitutional.
In Roesch’s 2021 ruling, his first stated reason for finding Prop. 22 unconstitutional is that it undermines the legislature’s authority to provide worker’s compensation benefits, in addition to limiting the elected legislature’s ability to enforce them.
“This isn’t just taking out a small set of workers,” said Justice Jon Streeter in Tuesday’s hearing. “We’ve got brief after brief, in this case, talking about the significance of the labor force in the gig economy to the California economy in general.” He noted that removing a vast number of workers from the worker’s compensation system seems to be more than just an alteration, but could “dismantle the system.”
“Do the people [who voted to pass Prop. 22] have the power to repeal the entire worker’s compensation system for California?” he asked.
In response, Jose Zelidon-Zepeda, Deputy Attorney General and a lawyer representing supporters of Prop. 22, said that “the court should jealously guard” the people’s power to legislate through initiatives passed though popular election, such as Prop. 22.
The second and third unconstitutional elements put forward in Roesch’s ruling both deal with a provision in Prop. 22 that prevents the legislature from authorizing a collective bargaining system, or a union, for app drivers. Roesch found that it was both hidden from the electorate when it voted on Prop. 22 and violates the “single subject rule” governing ballot measures in California, which mandates that each measure must have only a single primary focus.
“You don’t put something before the voters for approval, and then you sneak in a provision saying, ‘Well, any legislation on that topic is an amendment,’” argued Kronland in the hearing.
Justice Tracie Brown noted the same issue. “It has the whole thing in one proposition, and they [the voters] couldn’t have known that this collective bargaining provision might fall. So if they were voting at a time when there was a single subject problem, then there might have been the problem ab initio (from the beginning) at the time of voting.”
Jeffrey Fisher, another lawyer representing Prop. 22 supporters, said, “Calling out this provision as sneaky is actually upside down. It’s routinely in California initiatives. The amendment says these initiatives can be amended so long as they’re consistent with the purposes and the rest of the initiative.”
Fisher stressed that the nature of Prop. 22 is to “protect worker independence, the independence of the drivers to set their own hours, their own working places.”
In fact, lacking adequate legal protection as employees, both full- and part-time gig workers are enduring lower and lower incomes, sometimes even as low as $6.20 per hour, and having to compensate by working significantly longer hours. Some even sleep in parking lots. Despite degrading work conditions, Prop. 22 has taken away even their right to unionize.
Nationwide, President Joe Biden’s administration is preparing to reclassify more gig workers as employees rather than independent contractors.
In California’s state Appellate Court Tuesday, the hearing ended without fanfare as Presiding Justice Stuart Pollak said, “The court is certainly aware of the significance of this case. We appreciate the extensive, thorough, and helpful arguments from both sides.”