Every time you turn around, someone new is winning the war in California around organizing workers in the sharing economy.
Labor struck first when California legislators passed Assembly Bill 5, requiring all independent contractors working for gig economy companies to be reclassified as employees. That was expected to set off a chain reaction in state legislatures nationwide, until two things happened.
First, COVID-19 hit and quickly became all-encompassing, making it virtually impossible for lawmakers and regulators to focus on anything but surviving the pandemic. Second, Uber, Lyft, Instacart and others funded and voters approved Prop 22 in California, striking down AB-5 and returning sharing economy workers to independent contractor status.
On the same day that Prop 22 passed, Democrats captured both chambers of Congress in Washington, but their margins were so slim (50-50 in the Senate and a nine-vote majority in the House), that federal legislative action on the issue was near impossible. Across the country, politicians read the tea leaves of Prop 22 and decided to mainly stay away. That kept the issue at bay during the 2021 state legislative sessions.
But the tide started to turn again this summer. First, U.S. Rep. Bobby Scott (D-Virginia) introduced the PRO Act in February 2021, stating that workers would be reclassified using an ABC test, in addition to rolling back right-to-work laws in states and establishing monetary penalties for companies and executives who violate workers’ rights.
The bill handily passed the House in March, but has since stalled in the Senate, despite receiving a hearing and energetic support by high-profile senators including Bernie Sanders and Majority Leader Chuck Schumer.
The Biden administration’s appointees to the Department of Labor and the National Labor Relations Board are decidedly in favor of full-time-worker status. And now, a California Superior Court judge has ruled Prop 22 unconstitutional, saying it violates the right of the state legislature to pass future laws around worker safety and status.
The sharing economy companies are expected to appeal, and the case could ultimately wind up before the California Supreme Court.
So now what? The courts will ultimately determine the status of sharing economy workers in California, but since the decision will be about the specific legal parameters of California’s referendum process, it won’t determine the issue elsewhere. And despite noise from Washington, Congress isn’t passing the PRO Act any time soon (Democrats may try to include it in the reconciliation for the $3.5 trillion American Families Plan, but the odds of its survival are low). That means the action returns to the states.
New York is the biggest battleground outside of California. Democrats have amassed a supermajority in both chambers of the legislature, and New York lacks a referendum vehicle to overturn state law.
Sharing economy workers are the biggest organizing opportunity for private sector unions in decades, and labor will use all of its influence to pass worker classification reform in 2022.
However, Kathy Hochul, New York’s new governor, is a moderate, and state legislators recently abandoned a half-baked plan brokered by gig companies to safeguard independent contractor status, indicating a resolution on the issue will likely take time.
Illinois is fertile ground for worker reclassification, too, but the state remains a question mark.
There’s also a chance of movement in Massachusetts, where gig companies are making a play to establish a ballot initiative very similar to Prop 22. Legislators in Seattle and Pennsylvania have also signaled an interest in exploring the issue.
And just a few months after most state legislative sessions conclude next summer, we’ll hit the midterm elections, which could produce a Republican wave (especially in the House) that would yet again quash the chances of worker classification legislation passing anywhere.
In other words, this is going to ping back and forth for at least the next few years in the courts, in state legislatures, and in the halls of Congress and federal agencies. If you’re a sharing economy investor and you want this issue resolved once and for all, that peace of mind isn’t coming. And the market, rather than accepting that this will be an unresolved issue for the next few years, will probably overreact to each individual action, whether it’s a lower court ruling or a piece of legislation making its way through a state.
In reality, the answer is the same as it’s always been: trying to shoehorn sharing economy workers into one of two existing categories — 1099 or W-2 — doesn’t work. We still need to recognize that the inherent nature of work has changed over the last decade, and we need to recognize that both parties — the sharing economy companies and the unions — are only looking out for their own interests and coffers at the expense of what’s best for actual workers.
California is not going to resolve this issue. It’s just swung back and forth from one extreme to another. Congress is not going to resolve this issue because it almost never resolves anything.
So the game comes down to states like Illinois, New York and Massachusetts. It comes down to legislators and leaders trying to craft good public policy at the expense of their donors and supporters and Twitter followers — and then it comes down to their colleagues doing the same.
It means sacrificing politics for policy. That almost never happens. And it probably won’t happen here, either. So if you’re trying to game out where this issue is going, accept the uncertainty and expect that a thoughtful, smart resolution — locally or nationally — is unlikely. It’s a dissatisfying conclusion but, sadly, it epitomizes exactly where our politics stand today.
