Gig workers' rally
Some of the demonstrators pose for a group photo, and in the middle is Scott Kronland, an lawyer representing opponents of Proposition 22. Photo by Yujie Zhou Taken Dec. 13, 2022

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. 

Lawyers outside the courtroom. Photo by Yujie Zhou. Taken Dec. 13, 2022.

“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.”

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REPORTER. Yujie Zhou is our newest reporter and came on as an intern after graduating from Columbia University's Graduate School of Journalism. She is a full-time staff reporter as part of the Report for America program that helps put young journalists in newsrooms. Before falling in love with the Mission, Yujie covered New York City, studied politics through the “street clashes” in Hong Kong, and earned a wine-tasting certificate in two days. She’s proud to be a bilingual journalist. Follow her on Twitter @Yujie_ZZ.

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  1. Argument for Union of Uber drivers Uber has taken advantage of Prop 22, before Prop 22 75% to Driver and 25% to Uber which is appropriate since we pay for Gas, Maintenance, depreciation, Tires, time, car payment, personal insurance with gap coverage for ride sharing, cleaning supplies. Before Prop 22 1000.00 deductible if we were in an accident and it was our fault again appropriate. Before Prop 22, we could make our own fair 1.1,1.2,1.3,1.4 multiplied. After Prop 22 Uber on longer rides say 10 miles or longer Uber has been taken 70% and giving drivers 30%, our deductible has risen to 2500.00, they now have Radar which for the drivers doesn’t show the map only addresses, you now have to sign up for little bonuses 1-4.50 a ride they pick the times, and almost all full time drivers in San Francisco sleep in their vehicles because we can’t afford any place in San Francisco unless we drive 10-12 hours a day 7 days a week. As a great example 2019 I drove approximate 36,700 miles and made a little over 100K, 2022 I drove approximately 42,500 and made 60K both don’t include expenses like gas, maintenance, depreciation, cleaning supplies flat tires etc cost. I wanted to stay independent driver prop 22 wasn’t for us it was for Uber and it’s Stock holders. As A Retired US Army Veteran Uber has made us become no bodies under the disguise Called Prop 22.

  2. I’m an uber eats delivery driver and prop 22 is the only thing that makes this job worth it…..If it gets overturned I don’t know what I’m going to do. I have made SIGNIFICANTLY more money since it passed. I’m so frustrated and nervous 🙁

  3. Rideshare apps were inevitably going to happen with today’s technology, gps and phones. It’s nuts that corporations would try very very hard to work against local governments and the workers in the implementation of moving around town with a phone app. All from the very beginning. If they can dig a bigger hole with their corporate greed, they will absolutely dig it.

  4. Thank you for the detailed coverage of this monumental case. Prop 22 voters were bamboozled by the beneficiaries of the gig industry, whose unimaginable profits rely on neo-feudalistic levels of gig worker exploitation. It’s wrong and hypocritical that Rob Bonta’s AG office is defending these criminals.

    1. Yeah,

      We get screwed on the State level lots.

      We used to be able to argue against cell phone towers.

      New State law says we can’t.

      Used to be able to protect neighborhood character and density.

      Now, Weiner/Chiu spawned State laws say no way.

      Arntz claims hold up on DOE Open Source Voting Pilot holdup is because of Secretary of State.

      Uber’s business plan was there for all to see.

      To destroy the jobs of every cab/bus/truck driver in the world.

      These folks are complaining about drivers salaries in front of the courthouse while legal driverless cars pass behind them.

      Go Niners !!



    2. Meh no, Californians figured their cheap rides would go away if Prop.22 didn’t pass so they voted it in place.

  5. Great article! I didn’t even know about this lawsuit. Just a reminder to readers that Prop 22 was just a response to AB5. AB5 was a ridiculous mess of a law that would ban just about all freelance work (pushed by the big labor unions), unless you were a special interest group that was able to lobby for an exception, which made the whole thing a Swiss cheese of unfair and arbitrary loopholes. It’s really sad to me that laws in the legislature are written by special interest groups and propositions are bought and paid for by large corporations. Money and politics are a nasty business.