4th District considers whether California’s gig worker law applies to Instacart

Despite Instacart's support for Proposition 22, which upheld the status of California's app-based drivers as independent contractors, the question of whether the ballot measure even applies to Instacart's drivers seemed far from settled Monday as attorneys debated the issue before a court of appeal.

In a brief filed ahead of Monday's hearing, San Diego Deputy City Attorney Kevin B. King said under the terms of Proposition 22, companies cannot require their app-based drivers to accept specific delivery requests as a condition of maintaining access to the company's app. King wrote Instacart "deploys a series of tactics to force shoppers to accept job assignments, including imposing consequences for not accepting a batch, limiting shopper ability to affirmatively reject a batch, assigning an acceptance rate, and audible phone 'pinging' through the Instacart App."

At the hearing, Benjamin Berkowitz, a partner at Keker, Van Nest & Peters LLP who represents Instacart, denied the allegations. "The only issue that Mr. King raised seems to be ... about whether or not drivers are required to accept any specific ride-share service or delivery service," Berkowitz said. "The record is pretty clear that Instacart does not make any such requirement of shoppers," the attorney added, pointing to a company policy that states "shoppers are never required to accept orders or batches."

The oral arguments were presented before 4th District Court of Appeal Administrative Presiding Justice Judith McConnell, and Justices Justice Joan K. Irion and William Dato.

San Diego City Attorney Mara W. Elliott filed the lawsuit stating Instacart was misclassifying drivers as independent contractors in 2019, days before Gov. Gavin Newsom signed Assembly Bill 5, the law that tightened the definition of "independent contractor" in California. Instacart is legally registered as Maplebear Inc. California v. Maplebear, Inc., D077380 (Cal. App. 4th Dist., filed May 26, 2020).

Shortly after Elliott filed the lawsuit, Instacart filed a motion to compel arbitration. Elliott moved for a preliminary injunction that would require the company to reclassify its drivers as employees. In February, San Diego County Judge Timothy Taylor granted Elliott's request, a move that Berkowitz argued, in a brief, "violated Code of Civil Procedure §1281.4 by adjudicating San Diego's preliminary injunction motion while Instacart's motion to compel arbitration and to stay was pending."

At the hearing, Irion asked Berkowitz whether he wanted an arbitrator to determine whether Proposition 22 applied to Instacart. "In an ideal world, from your standpoint, you would have the trial court determine that this was appropriate for arbitration, and have the arbitrator make the Proposition 22 findings and rulings?" she asked.

Berkowitz said he did. "Whether it's the arbitrator or the trial court, there's plenty of evidence that Instacart meets the test," he said. "It's not possible to simply brush away -- as Mr. King would have the court do -- the Proposition 22 arguments and evidence."

But King said arbitrating the claims did not make sense, since one of the parties was the government. "I think that would be more appropriate if we had a dispute between private parties," he said.