A California appeals court judge has granted Uber and Lyft’s emergency stay. This means the preliminary injunction that sought to force companies to reclassify their drivers as employees will not go into effect this Friday. Instead, this emergency stay extends that Friday deadline to at least mid-October, when the court will hear oral arguments.
Companies have until early September to outline their plans about how they will make drivers employees if they lose the appeal and/or Prop 22 doesn’t pass in California.
Earlier today, Lyft penned a blog post saying it will shutdown tonight. Clearly, Lyft jumped the gun on this one. This month, both Uber and Lyft argued in court that they should be able to continue classifying their drivers as independent contractors. A judge disagreed, and granted a preliminary injunction to force both companies to reclassify their drivers as employees beginning Friday. In response, both Uber and Lyft said they would be forced to temporarily pause operations in California.
Yesterday, Uber CEO Dara Khosrowshahi said on a podcast that the company can’t simply hire all 50,000 of its drivers overnight.
“All of our model, everything that we have built is based on this platform that brings earners and brings people who want transportation or delivery together,” he said on a Vox Media podcast yesterday. “You can’t flip that stuff overnight. It’ll take time, and we will figure out a way to be in California. We want to be in California. But if the court case comes in, then we’ll have to shut down, and we’ve got the best engineers in the world figuring out how we can rebuild this thing. If we do have to go to employment model, what’s going to happen is that we will then have to underwrite driver productivity. There will be far fewer drivers employed, so my guess is 70-80% of users who use Uber for flexibility, they drove 5 to 10 hours, etc., they will not be able to earn. The prices are going to go up. They’re going to go up less in city centers. So I think SF prices will go up by 20%. Smaller cities prices will go way up.”
What Uber is proposing with Prop 22 is essentially a third way of classifying gig workers, but co-founder of Gig Workers Collective Vanessa Bain says a third way “is bullshit,” she said on the same Vox Media podcast yesterday.
“It’s categorically less than what we’re entitled to under current law,” she said.
Below is a timeline of what’s led to this moment.
January 1, 2020: Assembly Bill 5 becomes law. The bill, first introduced in December 2018, codified the ruling established in Dynamex Operations West, Inc. v Superior Court of Los Angeles. In that case, the court applied the ABC test and decided Dynamex wrongfully classified its workers as independent contractors. According to the ABC test, in order for a hiring entity to legally classify a worker as an independent contractor, it must prove (A) the worker is free from the control and direction of the hiring entity, (B) performs work outside the scope of the entity’s business and (C) is regularly engaged in an “independently established trade, occupation, or business of the same nature as the work performed.”
May 2020: California Attorney General Xavier Becerra, along with city attorneys from Los Angeles, San Diego and San Francisco, filed a lawsuit asserting Uber and Lyft gain an unfair and unlawful competitive advantage by misclassifying workers as independent contractors.
The suit argues Uber and Lyft are depriving workers the right to minimum wage, overtime, access to paid sick leave, disability insurance and unemployment insurance. The lawsuit, filed in the Superior Court of San Francisco, seeks $2,500 in penalties for each violation, possibly per driver, under the California Unfair Competition Law, and another $2,500 for violations against senior citizens or people with disabilities.
June 2020: Becerra and others file a motion for a preliminary injunction seeking to force Uber and Lyft to immediately classify their drivers as employees.
August 6, 2020: California Superior Court Judge Ethan P. Schulman hears arguments pertaining to the preliminary injunction. At the hearing, Uber and Lyft maintained that an injunction would require them to restructure their businesses in such a material way that it would prevent them from being able to employ many drivers on either a full-time or part-time basis. Uber and Lyft’s argument, effectively, is that classifying drivers as employees would result in job loss.
“The proposed injunction would cause irreparable injury to Lyft and Uber, and would actually cause massive harm to drivers and harm to riders,” Rohit Singla, counsel for Lyft, said at the hearing.
For example, Lyft estimates it would cost hundreds of millions of dollars simply to process the I-9 forms, which verify employment eligibility. It doesn’t cost anything to file that form, but it would require Uber and Lyft to further invest in their human resources and payroll processes.
August 9, 2020: Judge Schulman grants the preliminary injunction, which goes into effect on August 20, 2020.
“The Court is under no illusion that implementation of its injunction will be costly,” Judge Schulman wrote in the order. “There can be no question that in order for Defendants to comply with A.B. 5, they will have to change the nature of their business practices in significant ways, such as by hiring human resources staff to hire and manage their driver workforces.”
Meanwhile, Uber and Lyft made clear their respective plans to file emergency appeals.
August 12, 2020: Uber CEO Dara Khosrowshahi says Uber will have to temporarily shut down in California if the court doesn’t overturn the preliminary injunction. Lyft says it, too, will be forced to temporarily cease operations in California.
August 13, 2020: Judge Schulman denies Uber and Lyft’s appeal. Uber says it plans to file another appeal, while Lyft says it will seek a further stay from the state’s appellate court.
August 14, 2020: Lyft files a request for an immediate stay in California’s appeals court.
August 17, 2020: Uber files an emergency stay request in California’s appeals court.
August 19, 2020: San Diego and San Jose mayors call for the Court of Appeal to grant Uber and Lyft’s motions and stay the injunction.
Looking ahead
November 2020: Californians will vote on Prop 22, a ballot measure majorly funded by Uber, Lyft and DoorDash. Prop 22 aims to keep gig workers classified as independent contractors. The measure, if passed, would make drivers and delivery workers for said companies exempt from a new state law that classifies them as W-2 employees.
The ballot measure looks to implement an earnings guarantee of at least 120% of minimum wage while on the job, 30 cents per mile for expenses, a healthcare stipend, occupational accident insurance for on-the-job injuries, protection against discrimination and sexual harassment and automobile accident and liability insurance.
