Battle over gig work law intensifies as virus spreads

As Congress works to finalize a $2 trillion emergency coronavirus economic stimulus package, Uber CEO Dara Khosrowshahi pushed an ongoing debate about California’s Assembly Bill 5 when he tweeted a letter addressed to President Donald Trump, asking that the provisions “include protections and benefits for independent workers.”

In her own letter posted several hours later Monday, AB 5 author Assemblywoman Lorena Gonzalez, D-San Diego, told House Speaker Nancy Pelosi, D-San Francisco, and Senate Minority Leader Chuck Schumer, D-New York, that Khosrowshahi was proposing creation of a “third category of employment for gig workers” that would effectively exempt Uber from federal and state labor laws like AB 5. The law, which went into effect Jan. 1, automatically classifies California workers as employees unless they pass a three-pronged “ABC” test.

Workers classified in the third category proposed by Khosrowshahi — unlike employees or independent contractors — would not have access to “minimum wage, overtime, health care, worker’s compensation, unemployment insurance, paid family leave, temporary disability, state disability insurance, the right to organize,” Gonzalez said in an interview Tuesday.

Arguments by gig economy companies and state Republican policymakers insisting that classifying workers as employees takes away flexibility is false, Gonzalez added, and she said the debate has confused drivers about how the law works. “There are a hundred examples of workers that are employees that have flexible schedules,” she said. “Right now there’s no flexibility when you have no rides. ... There’s no flexibility when you catch coronavirus from one of your clients and yet can’t take a day off because you have no paid leave. That’s not flexibility, that’s a false promise that Uber has given to their workforce.”

But Kelly O. Scott, who represents employers as a partner at Ervin, Cohen & Jessup LLP, said Gonzalez seemed to miss the point of Khosrowshahi’s letter.

“The way I read the Uber request is that independent contractors should be included in any stimulus package,” Scott said in an interview Tuesday. Scott noted the state Employment Development Department has instructions on its COVID-19 webpage encouraging eligible independent contractors to apply for benefits.

“If there is a genuine concern about the drivers not being able to take advantage of benefits, ... wouldn’t a good use of resources be to put them towards promoting the availability of those benefits to those workers?” Scott asked.

Asked to respond to Gonzalez’s letter, Uber spokesperson David White said by email Tuesday, “We are looking to continue providing support to drivers diagnosed with or individually asked to be quarantined by a public health authority due to COVID-19.”