By Wayne D. Garris Jr., J.D.
The ballot initiative would exempt app-based gig workers from AB 5, making them independent contractors.
On October 22, two Uber drivers, along with two nonprofit organizations, filed a proposed class action lawsuit in a California court alleging that the rideshare company violated state law by sending its drivers misleading and threatening messages to coerce them into supporting Proposition 22. “Prop 22,” which California residents will vote on during the November 3 election, is a ballot initiative that would classify app-based drivers as independent contractors instead of employees.
Threats. According to the complaint, since August 2020, Uber has subjected its drivers to “extensive, repeated messaging that is triggered every time a driver logs on to Uber’s mandatory app” regarding Prop 22. The messages claim that if Prop 22 fails to pass, Uber may cease all California operations or cut its California workforce by 70 percent, but it may rehire some drivers. The plaintiffs argue that the implication in these messages is that if drivers want to be among the 30 percent who are rehired or retained, they must publicly support Uber’s “Yes on 22” campaign.
Misinformation. In addition, Uber allegedly falsely told drivers that those who might be retained would lose scheduling flexibility, have their earnings limited, would be barred from using other ride-sharing apps, and would be forced to accept rides with poorly rated riders. Uber also claimed that if Prop 22 passes, its drivers would receive a guaranteed minimum income of 120 percent of the California minimum wage.
Coercion. Lastly, the plaintiffs allege that Uber is using the app to force drivers “take affirmative steps to manifest their support for Proposition 22.” This includes asking drivers to respond to in-app surveys about Prop 22 and soliciting drivers to record videos of themselves expressing support for Proposition 22. In one particular survey asking drivers about their opinions on Prop 22, a prompt for the survey states, “Let us know where you stand. We’d like to let your customers know if you support Prop 22.”
“By the time the driver reaches this page in the driver app, Uber has already made its position abundantly clear,” the complaint states. “Uber is also uniquely positioned, as the driver’s employer, to reward or punish those drivers who answer, or fail to answer, those survey questions in the manner Uber has implicitly demanded.”
“Let’s be absolutely clear,” said David Lowe, a partner at Rudy, Exelrod, Zieff & Lowe, one of the attorneys for the drivers in a press release, “Uber’s threats and constant barrage of Prop 22 propaganda on an app the drivers must use to do their work have one purpose: to coerce the drivers to support Uber’s political battle to strip them of workplace protections,” Lowe said.
The drivers are seeking declaratory and injunctive relief as well as attorney’s fees.
Uber’s response. “This is an absurd lawsuit, without merit, filed solely for press attention and without regard for the facts,” Uber spokesman Matt Kallman said to technology news site TechCrunch. “It can’t distract from the truth: that the vast majority of drivers support Prop 22 and have for months because they know it will improve their lives and protect the way they prefer to work.”
The case, Valdez v. Uber Technologies, Inc., was filed in Superior Court of California in and for the County of San Francisco. The case is No. CGC-20-587266.
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