On Tuesday, groups including the ACLU and the National Employment Law Project, submitted an amicus brief—an advisory legal document containing arguments for courts to consider—to the court considering appeals by Uber and Lyft to overturn an injunction demanding they immediately reclassify their drivers as employees.
The brief argues that gig companies don't offer "opportunities" for communities of color so much as "deepen the desperation of workers who have been excluded from stable employment,” and that workers of color are "uniquely harmed by the companies' misclassification."
Bolstering the first argument is the simple nature of classification: firms misclassify workers who are actually employees as independent contractors to deny them benefits and protections that would otherwise inflate labor costs. In the case of app-based gig companies like Uber and Lyft, the vast majority of work is done by Black and brown workers, but specifically a small core of them who drive full-time. Uber's own internal data shows that workers of color are overrepresented when compared to the population, reporting that 63 percent of its drivers are non-white. A survey of drivers in San Francisco, one of Uber’s and Lyft’s most important markets, found that 80 percent of their drivers and couriers are people of color.
“The California Court of Appeal will make its decision based on the law of Assembly Bill 5. But it is critical to recognize the unjust class and race hierarchies that feed into illegal employer practices like misclassification,” said Brian Chen, staff attorney with the NELP. “The reality is that ultra-powerful corporations like Lyft and Uber have amassed their incredible wealth precisely by denying basic protections to poor people of color excluded from decent jobs.”
The brief explains how misclassification justifies subminimum wages and encourages companies to block their Black and brown workers from accessing social welfare programs. Even more, it allows these firms to refuse to contribute taxes to the funds behind welfare programs for workers.
As the brief notes, it is no surprise that misclassification is "prevalent in low-wage, labor-intensive industries, such as delivery services, janitorial services, and home care," all industries with predominantly non-white workforces.
A common justification for misclassification is that these workers are engaged in "unskilled" labor. This assertion doesn’t mesh with the reality of, say, ride-hail drivers in New York City who have to undergo a lengthy process to get trained and eventually licensed. Another argument for misclassification is that this work opportunity prioritizes "flexibility.” Again, this is hard to square with the reality of drivers who were forced to live in their cars after Uber and Lyft introduced a strict quota system in NYC to undermine regulations imposed by the city. There is also the fact that ride-hail drivers are tightly managed by algorithmic overseers that collect data on their every move to better anticipate and control them.
These narratives all serve a purpose, and together, the brief argues, they "suggest a level playing field” that can be overcome by rugged individualism. In this framework, homelessness, poverty, and predatory car rental schemes are not the results of illegal business practices preying on poor workers of color, but proof that drivers do not work hard enough.
An argument that defends exploitation on the grounds that workers aren’t working hard enough is one that conveniently ignores that exploitation thrives precisely because these workers face racial discrimination and economic exclusion. As professor Kimberlé Crenshaw, quoted in the brief, summarizes the implicit argument: “…if Blacks are on the bottom, it must reflect their relative inferiority.”
The second argument in the brief, that workers of color are uniquely harmed by misclassification, follows quickly from the first: misclassification brings a host of ills to workers, and workers of color make up the majority of these ride-hailing companies' workforces. They are the most in need of these protections and are simultaneously denied them the most.
The brief points to a litany of evidence that shows that workers of color are uniquely harmed by misclassification because of this country’s long history of racial discrimination and segregation: the median net worth of a white household is $171,000, but $17,600 for a Black household; a third of Black and Latino families have negative or zero wealth; in the past year, working-age Black and Latino individuals earning below the poverty line spiked by 3.6 million (40 percent) and 4.0 million (34 percent). All of these form back of the backdrop that makes misclassification all the more pernicious considering the predominantly Black and brown workforce.
Uber and Lyft drivers, who are estimated to earn $9.21 an hour after taking into account expenses, Social Security and Medicare taxes, and additional deductions, are effectively locked into their line of work. A predominantly Black or brown workforce with little to no assets or wealth means drivers will go into debt. Some because of payday loans (a business line Uber is interested in), or credit card debt incurred to cover emergency expenses such as car maintenance. Others still fall behind on predatory car rental payments to these companies and risk losing their car—their main source of income and, in some cases, their home.
Despite the weath of evidence regarding the unique harms misclassification poses to non-white workers, Uber and Lyft are fighting to continue the practice in a desperate bid for survival.
To date, the companies have raised $184 million to exempt themselves from providing basic protections to their driver employees, donated millions to California’s GOP which is opposed to any efforts to do so, and deployed a record number of lobbyists to Washington DC and California to kill any other legislation that may reintroduce the threat of reclassification. Now, gig economy companies are gearing up for a massive advertising campaign to win their Yes on Proposition 22 campaign in California—all while fighting in the courts to preserve misclassification.
Uber and Lyft did not immediately respond to Motherboard’s request for comment.