Can Gig Workers Have Flexibility and Protections Afforded to Employees in AB 5? Absolutely

Gig companies like Uber, Lyft and Doordash, desperate to avoid providing basic protections and decent pay to drivers, are engaged in an all-out disinformation campaign to defend their illegal business models and kill legislation that would protect workers. We can’t possibly provide flexibility AND treat our workers with dignity and respect, they say.

Nonsense.

The notion that flexibility is inconsistent with employee status is what we’ll call The Big Lie. The Big Lie offers gig companies cover to continue exploiting their drivers by paying them less than minimum wage, leaving them vulnerable to discrimination and offering no protections if they are injured on the job or unemployment insurance if they are laid off. That’s because, according the The Big Lie, these self-proclaimed masters of innovation can’t figure out how to offer flexibility and provide basic protections to drivers at the same time.

In an op-ed in Friday’s LA Times, former Obama Wage and Hour Chief David Weil tackles The Big Lie head on:

As extremely smart, innovative companies, however, Uber and Lyft can figure out clever ways to use their data-driven platforms, algorithms, and high-powered incentives to deploy “employee” drivers efficiently in a manner similar to their current system. I am sure they would still allow driver flexibility on start and stop times and incentives to get the right number of vehicles to the right places at the right time. That’s because flexibility is not only valued by the drivers — it is critical to their business strategy whether the drivers are employees or contractors.

The truth is, flexibility has NOTHING to do with classification. It’s all determined by the employer. If you, as a business, have a model that relies on flexibility, nothing in AB 5 or the Dynamex decision that undergirds it says you can’t continue to operate in exactly the same fashion as you do now with regard to flexibility.

As the National Employment Law Project points out, flexibility exists in many industries that recognize workers as employees.

Many gig companies claim that employee status and work flexibility are incompatible. That is not true, and it is a false choice to suggest a worker can have one but not the other. There is nothing about employee status that is inherently inflexible, and nothing required by any law or policy that would make it so.[iv] Being an employee can come with flexible job hours if that’s how the employer chooses to structure things, or if workers and their colleagues come to an agreement with their employer, for example, through a collective bargaining agreement.

In fact, a number of companies in the gig economy already treat their workers as employees, while at the same time providing them with flexible work schedules and benefits. These include platform companies like the cleaning company Managed by Q and the personal management company Hello Alfred. The scooter company Spin chose to hire employees to collect, charge, fix, and redeploy its scooters. Another scooter company, Bird, has recently begun to reclassify its mechanics as employees. Employee delivery drivers at the gig company Enjoy can select which days of the week they wish to work. These companies prove that flexibility and employee status are perfectly compatible. All it takes is a company that cares not only about profits but its workers too.

The most recent example is Deliv, a Bay Area-based delivery service that converted all its employees from independent contractors to employees while continuing to offer total scheduling flexibility to its workforce.

But unfortunately, some opinion leaders are buying into The Big Lie, as the LA Times did in a recent editorial. By spreading misinformation about flexibility and employee status, the Times does its readers a disservice. As a result of The Big Lie and those who are helping to spread it, some workers for these companies are naturally concerned that if they become employees, they might lose flexibility. That’s why it’s so important to set the record straight.

These big corporations are using scare tactics based on distortion to avoid providing basic protections and a living wage to their drivers. What they are doing now is no different from what the corporate robber barons did 100 years ago to suppress worker movements that we’re trying to improve standards and pay for those whose labor was exploited in the name of greed.

Fortunately, The Big Lie is being exposed by worker-led organizing. On Wednesday, hundreds of workers from the gig economy and across industries will descend on the Capitol to make sure legislators here the message loud and clear that workers won’t be deterred by the corporations’ Big Lie. AB 5 is critical to our future as a state.

Gig companies may not want to play by the rules, but ultimately it’s not up to them. It’s up to us to ensure they comply with the law just as most businesses in our state currently do. Legislators can’t turn a blind eye to this exploitation any longer. The State Senate should follow the Assembly’s lead by passing AB 5 to give all workers – in the gig economy and beyond – a fair shot to provide for themselves and their families.

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