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Uber Drivers Sue Over In-App Messages Urging Them to Vote for Prop 22

A group of Uber drivers claim they are being subjected to a “constant barrage” of in-app messages urging them to support Proposition 22, a California ballot measure to exempt Uber and other rideshare and delivery companies from having to classify gig workers as employees.

SAN FRANCISCO (CN) — A group of Uber drivers claim they are being subjected to a “constant barrage” of in-app messages urging them to support Proposition 22, a California ballot measure to exempt Uber and other rideshare and delivery companies from having to classify gig workers as employees.

"This case challenges Uber's wrongful efforts to dictate to its drivers — a captive audience whose members are economically dependent on Uber for their jobs, their pay, and for the timely, favorable, and plentiful ride-sharing assignments that Uber can provide — how they should vote in the upcoming election and what they should do to support Uber’s Yes on Prop 22 campaign,” says their class action filed in San Francisco.

The initiative takes aim at Assembly Bill 5, passed by the California Legislature last year, which classified droves of gig workers as employees and mandated that businesses provide them with health insurance, mandatory minimum wages and other benefits. 

Rideshare giants Lyft and Uber fought bitterly against it in court after Attorney General Xaiver Becerra sued in May to force them to comply with the new law. 

Adding a new sense of urgency to the battle at the ballot box is an appellate court’s eleventh-hour ruling upholding a San Francisco judge’s order that Uber and Lyft begin classifying its drivers as employees, triggering threats from both companies to pull out of California altogether. 

The 70-page ruling released late Thursday found the judge rightly issued an injunction forcing the companies to reclassify its drivers as employees. The latest order takes effect in 30 days after the case is officially sent back to the trial court.

“When violation of statutory workplace protections takes place on a massive scale, as alleged in this case, it causes public harm over and above the private financial interest of any given individual. This is particularly true nowadays, with the diminished efficacy of private enforcement of workplace remedies due to the widespread adoption and ready enforceability of contractual arbitration clauses,” Justice Jon Streeter wrote. 

“The trial court found that rectifying the various forms of irreparable harm shown by the People more strongly serves the public interest than protecting Uber, Lyft, their shareholders, and all of those who have come to rely on the advantages of online ride-sharing delivered by a business model that does not provide employment benefits to drivers.”

Uber and Lyft, along with food delivery companies Instacart and Doordash, have poured millions into Proposition 22, which would solidify app-based drivers’ status as independent contractors. It also sets limits on the number of hours they can work each day and would offer minimum wages and some health insurance subsidies.

With the fate of their business in the balance, Uber has taken to bombarding its drivers with messages about Proposition 22, urging them to respond to opinion surveys and submit favorable videos to use in its campaign, the lawsuit also claims. It adds that Uber does not reassure drivers that it will not monitor their answers or favor those who support the measure.

Davis White, Uber's public affairs director in California, blasted the lawsuit in an email to Courthouse News. 

"This is an absurd lawsuit, without merit, filed solely for press attention and without regard for the facts,” he said. "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.

“Today’s ruling means that if the voters don’t say Yes on Proposition 22, rideshare drivers will be prevented from continuing to work as independent contractors, putting hundreds of thousands of Californians out of work and likely shutting down ridesharing throughout much of the state. We’re considering our appeal options, but the stakes couldn’t be higher for drivers — 72% of whom support Prop. 22 — and for the California economy, where millions of people are jobless and another 158,000 just sought unemployment support this week.”

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In an interview, employment attorney David Lowe with Rudy Exerod Zieff & Lowe said Uber’s Yes on 22 communications are coercive in multiple ways; misleading drivers into believing that they will lose their prized work flexibility and be required to re-apply for their existing jobs should Proposition 22 fail.

Uber touts the results of an “online poll” solicited in the app, saying “72% of drivers and delivery people have already said they’re voting yes on Prop 22."

Lowe called the statistic absurd. 

“It’s like a dictator saying 98% of the population voted for me,” he said.

Uber allegedly tells its drivers that as a consequence of Proposition 22’s  failure “driving jobs would be limited” and that it will likely rehire only 30% of its existing workforce. 

Lowe said that with all the information Uber collects on its drivers, one could easily make the inference that a driver’s future employment could be tied to their support of the initiative. 

“The clear message is Uber is aware of who is clicking “Yes I support Prop. 22" and who is submitting videos on Prop. 22,” Lowe said. “They have control over who they rehire. If they only rehire 20-30 percent, the chances of being rehired are higher if Uber knows you support their political position. It’s not just that they are broadcasting their view on the initiative. They are retaining that information and Uber has the power to discipline employees and take opportunities away from them.”

This may not be true of course, but Lowe said that isn’t the point. 

"It doesn't matter whether what Uber is saying is true or not true, or means what it says. What matters is what Uber is intending,” he said. “If what they’re trying to do is convey the impression that your status with us may be dependent on whether you are one of the people who respond positively to our requests to you to support Prop. 22. They’re already economically vulnerable so it doesn’t take much to cause that concern.”

That’s certainly the effect this messaging has had on driver Hector Castellanos, a plaintiff in the case. 

“Threatening that most of us will lose our jobs if Prop 22 passes is a scare tactic, pure and simple. It’s not right,” Castellanos said in a statement. “Uber is constantly asking whether we support Prop 22. They make us feel like we have to say ‘yes.’” 

The driver plaintiffs are joined by non-profits Worksafe and Chinese Progressive Association.

"Uber’s actions are old-school exploitation, coercing their workforce to support the company’s political position. It’s undemocratic and a violation of basic workplace rights,” said Chinese Progressive Association director Shaw San Liu, in a statement.

Employers have been prohibited in California from interfering with employees’ political activities for over a century, and labor laws forbid employers from using their economic power — including threatening the loss of employment — to control or influence employees’ political choices.

The lawsuit demands that the court order Uber to stop peppering drivers with Proposition 22 messages that make false and misleading statements about the consequences of the initiative’s failure or passage.

It also asks that Uber be required to inform California drivers that they have the coercion-free right to vote for or against Proposition 22, or to not vote at all. 

An injunction will have to come quickly with less than two weeks left before Election Day.

”We can’t control how quickly the court might act but yes we are hopeful there will be a way for the court to address that,” Lowe said.

He added that the case is not about Proposition 22 or whether drivers are independent contractors, but about coercive employment tactics. 

“It’s about Uber taking away its employees’ freedom to follow their own political viewpoints and try to coerce them into Uber’s and the labor code doesn’t allow that,” he said. 

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