It’s only been a few months since gig companies spent $200 million to sway Californians to vote for an exception that lets Uber, Lyft, Grubhub, and so on, treat workers as independent contractors rather than employees.
On Tuesday, California ride-hail drivers and the Service Employees International Union (SEIU) revealed litigation petitioning the Supreme Court of California to rule Proposition 22 "invalid and unenforceable” due to violating the state’s constitution.
Much of the fight over Proposition 22 has centered over its codification of worker misclassification and whether its promised benefits and driver pay will actually amount to a sub-minimum wage as some studies conclude. However, the lawsuit does not find this to be unconstitutional on its own. The problem with Proposition 22, the petition argues, is that it does so by undermining powers allocated to the state legislature by article XIV of California's Constitution, as well as some of the Supreme Court's own authority established in article II of the state’s Constitution.
“We look forward to the court affirming that gig companies cannot strip workers of their fundamental right to bargain for better pay and working conditions—and that corporations alone should not dictate the laws in our state,” said Bob Schoonover, President of SEIU Local 721 and SEIU California State Council. “Like Prop 187 and Prop 8, Proposition 22 is an unconstitutional attack on Californians’ rights that if left unchecked will grant permission to companies like Uber and Lyft to dismantle workers’ rights across the country. SEIU is proud to support drivers’ fight to stop this unconstitutional law.”
Article XIV gives the state legislature power to "create” and “enforce a complete system of workers' compensation" and that this power is "unlimited by any provision of this Constitution" like those made by state-wide ballot measures. Proposition 22 effectively denies gig workers the ability to access California's workers' compensation system and it is this move to limit the state legislature's unlimited constitutional authority to determine the scope of that system which is being pointed out as one of Proposition 22's unconstitutional elements.
Article II, section 10 of California’s Constitution prevents the state legislature from amending a ballot measure without voter approval unless the ballot measure allows for this. The drivers’ petition argues that it falls then to the Supreme Court to decide when passed legislation qualifies as an amendment. Proposition 22, however, claims this power for itself and defines an amendment expansively in a section buried near its end.
In Article 9 of Proposition 22, the first type of amendment that is prohibited from changing Proposition 22 is defined as “any statute that prohibits app-based drivers from performing a particular rideshare service or delivery service while allowing other individuals or entities to perform the same rideshare service or delivery service, or otherwise imposes unequal regulatory burdens upon app-based drivers based on their classification status”
In the next paragraph, another expansive addition is added to the definition of amendment, prohibiting: “any statute that authorizes any entity or organization to represent the interests of app-based drivers in connection with drivers' contractual relationships with network companies, or drivers' compensation, benefits, or working conditions”
As the petition points out, these nebulous definitions effectively mean that no law can be passed that authorizes any organization—including a union—to collectively bargain for better working conditions. In other words, the petition argues, Proposition 22 claims for itself a constitutional power reserved for the Supreme Court: defining what constitutes an amendment and determining whether legislation is violating California law by amending a ballot measure without voter approval.
Proposition 22 goes further and requires that any statute which falls under this definition of amendment can only be enacted by a seven-eighths supermajority vote, and only if it is "consistent" with what Proposition 22's drafters want.
Lastly, the lawsuit alleges that Proposition 22 unconstitutionally violates the "single subject rule" that requires ballot measures clearly address a single subject. Instead, the petition argues that "cryptic amendment provisions" are buried deep within the text, in hard-to-understand language. This amounted to voters not being aware that they were voting to prevent California legislators from ever giving gig workers the right to collectively bargain, or to eventually raising the wages and benefits provided by Proposition 22.
These moves by Uber, Lyft, and other drafters of Proposition 22 should come as no surprise given how their business models rely on breaking laws and rewriting them whenever possible. The concern, however, is that it will serve as a blueprint for other corporations to achieve otherwise illegal outcomes (i.e. paying workers a sub-minimum wage) through unconstitutional ballot measures that undermine states’ executive, legislative, or judicial authority.
“Prop. 22 not only created a permanent underclass of workers in California — it stripped the Legislature of its power to step in and improve working conditions for hundreds of thousands of app-based workers,” Assemblywoman Lorena Gonzalez, who helped write AB 5, which Proposition 22 was written to reverse, said in a statement. “The State Supreme Court should have an opportunity to weigh in on whether corporations can use the initiative process to write their own laws with artificial barriers designed to block elected representatives from doing their job."
Andrea Zindler, president of the UFCW Western States Council and UFCW Local 324, said in a statement that "We urge swift action on the workers’ lawsuit because essential workers can’t wait while app companies exploit them. UFCW workers stand in solidarity with those filing this suit because when workers stand together we can create a stronger future of work in California.”
When asked for comment, Yes on Prop 22 (now calling itself Protect App Based Jobs and Services) sent over a statement from a retiree Uber driver saying "Meritless lawsuits that seek to undermine the clear democratic will of the people do not stand up to scrutiny in the courts.”
Update: This article has been updated with comments from Protect App Based Jobs and Services, UFCW, and Lorena Gonzalez.