State Supreme Court seems poised to leave Prop 22 unchanged

By Levi Sumagaysay | CalMatters

Based on their line of questioning, California Supreme Court justices seemed to be reaching for a compromise as they heard oral arguments today in the long-running legal saga over whether gig workers should be considered independent contractors or employees.

Proposition 22, the gig industry-backed initiative that 58% of state voters passed in 2020, has been mired in a legal back-and-forth since it became law — including being ruled unconstitutional by a Superior Court judge before being upheld by a state appeals court. Uber, Lyft, DoorDash, Instacart and other companies have used the law to treat their drivers and delivery workers in California as independent contractors, not as employees.

The specific question before the state’s highest court is whether Prop. 22 conflicts with the state Legislature’s constitutional power to enforce a complete workers’ compensation system. Because of a clause in the initiative declaring gig workers independent contractors not eligible for workers’ comp, the whole law could be thrown out. But the justices did not seem to want to do that.

John Mejia, an Alameda gig worker in his late 60s who has driven for Uber and Lyft for nine years, said contractor status means doing without safeguards given to virtually every other worker in California. “There’s no unemployment insurance. There is no workers comp. There’s no health insurance,” said Mejia, a member of the Gig Workers Union, an association representing Californians who work for corporations including Uber, Lyft, DoorDash, and Instacart.

“If you’re sick you don’t make any money and you suffer. Being a contractor under Prop 22 basically takes away California civil rights that everyone in California has.”

Gig drivers must cover their own health care costs, and pay for fuel or charging, tires, and vehicle maintenance, Mejia noted. Because their pay is so low — a UC Berkeley Labor Center report issued Monday found median wages with tips amounted to $7.63 to $11.43 — many gig drivers work 12-hour days, and sleep in their cars, Mejia said.

“It’s unfair that you could take the ballot measure in California and build your own law and take advantage of the people who work with you and your customer,” Mejia said.

When Scott Kronland, the lawyer who argued on behalf of SEIU California and four gig workers, said that Prop. 22 conflicts with the Legislature’s exclusive and unlimited authority over workers’ comp, Chief Justice Patricia Guerrero asked whether legislators could restore workers’ comp for gig workers.

Associate Justice Goodwin Liu said there is “still ambiguity there” over voter initiative power, which is supposed to be equal to legislative power: “Does that mean voters cannot act in this field, (workers’ comp), whatsoever?”

Kronland responded that the Legislature’s power over workers’ comp is unlimited.

Attorney Jeffrey Fisher, arguing on behalf of the gig companies, said “the constitution lets voters act on any subject.” That sparked a question from Associate Justice Leondra Kruger: “Could voters by initiative eliminate workers’ comp altogether?”

Fisher said yes, but that “we’re miles away from that.”

At the end of the hour-long oral arguments, Kronland reminded the justices that “If court is going to decide this case on the premise that the Legislature could restore workers’ comp to gig workers… Prop. 22 says this section can’t be amended. The drafters of Prop. 22 put it on the ballot as all or nothing.”

If Prop. 22 is thrown out in its entirety, it would affect some gig workers who have come to depend on some of its provisions — such as guaranteed earnings of 120% of minimum wage for the time they spend driving or delivering, which they didn’t have before the initiative became law.

Cora Mandapat, a Bay Area driver who came to the San Francisco courthouse with the industry-backed group Protect App-Based Drivers + Services, said she gets extra money every week under those guaranteed earnings. She added that she takes an uncle to dialysis and driving for Lyft gives her the freedom to do that. She said she wished there was a way for some drivers to be employees, “but let me do what I want to do.”

Ed Carrasco, a ride-hailing driver and a member of Rideshare Drivers United who came up to San Francisco today but drives in the Los Angeles and Orange County areas, said afterward that the justices appeared to be “asking how to modify” Prop. 22 so drivers could qualify for workers’ comp if, for example, the Legislature passed a law that made them eligible. Carrasco and about 100 or so other gig workers and members of workers groups, including Gig Workers Rising, gathered for a rally outside the courthouse ahead of the oral arguments. The gig workers who did not go into the courtroom watched the oral arguments on a big screen they set up outside United Nations Plaza, across from San Francisco City Hall.

At the rally, Hector Castellanos, the lead plaintiff in the case, spoke about getting hurt as a gig driver years ago and being unable to get workers’ comp. He said his daughter had to drop out of school to help support his family.

“We are asking the justices to stand behind drivers,” Castellanos told the crowd. After the hearing, he told CalMatters that he knows plenty of drivers who regret voting for Prop. 22, which he said was bought by ride-share companies.

The court’s seven justices have 90 days to hand down a decision.

Staff writer Ethan Baron contributed to this report.