Thoughts from a California gig driver who is treated like an employee, but paid much less and called an “independent contractor”
In November 2020, after a massive, $200 million campaign by the ride share and delivery companies (Uber, Lyft, Doordash, Instacrt and Postmates) to convince voters to let them continue to treat drivers as independent contractors, rather than offering them the money, benefits and protections afforded to employees by law, California voters passed a ballot initiative, Proposition 22, by an overwhelming majority. Proposition 22 treats certain app-based drivers as independent contractors, not employees. This means companies like Uber (which now owns Postmates), Lyft, and Instacart do not have to pay workers compensation to those employees, do not have to pay them overtime, do not have to pay their work expenses and do not have to pay them for time they spend waiting for work, when they are online and available for a trip, but get no calls and are not getting paid for the downtime.
Following the passage of Proposition 22, on August 20, 2021, Alameda County Superior Court Judge Frank Roesch ruled that Proposition 22 was unconstitutional and unenforceable under California law. Appeals will be filed to overturn Judge Roesch’s decision. For now, Proposition 22 remains in effect. To bolster their appeal arguments, the rideshare and delivery companies are pretending to obtain driver feedback that they will most likely present to the Appeal Court as evidence that drivers want to be independent contractors. They will argue that because an overwhelming percentage of drivers surveyed support Proposition 22, it should remain in effect. Gig workers have probably received such a survey in their inboxes recently.
I would have no problem with either Proposition 22 or the survey designed to preserve it, if they presented the true facts and allowed drivers to make an informed decision about what they wanted. But Proposition 22 only succeeded in the first place, because its purpose and impact was hidden from voters. Proposition promotions are based on lies and the surveys about 22 only perpetuate those lies.
This is how the rideshare/delivery companies are spending ad and survey money to lie to you.
- They don’t want you to know whether a “Yes” vote means you are for or against being an Employee
The survey I received from marketing company Qualtrics started off by asking employees whether they supported Proposition 22, yes or no, without first defining what Proposition 22 actually was. If you want a credible answer, first define what the Proposition represents and, then, ask whether the employee votes yes or no on it.
Are you familiar with spacial disorientation? That’s when a plane turns suddenly and begins to spiral. The pilot loses his sense of direction and doesn’t know which way is up and which is down. He may be hurtling the aircraft towards the ground, while thinking he’s flying upwards. Well, the rideshare companies want you to have something like spacial disorientation. They want you to think yes is no and no is yes.
Last year, whenever a discussion about the proposition came up among voters, drivers or the public in general, you could tell that everyone was confused about what a “yes” vote meant. Does “yes” mean you support independent contractorship? It does. Yes means, you do NOT want drivers to be treated as employees. It means you don’t want worker’s compensation or overtime or waiting time or paid expenses (like gas and insurance and phone expenses for which an employee would be reimbursed, but an “independent contractor” pays out of her own pocket). But the rideshare/delivery companies don’t want you to know that. They want you to think that Proposition 22 protects driver rights and is pro-worker, not pro-corporation. At best, they want you confused. At worst, they want you to think a “yes” vote means exactly the opposite of what it actually does mean.
An honest survey would explain, describe and define the Proposition before asking you to vote on it.
2. An employee doesn’t automatically lose the flexibility to make her own schedule
After I voted “no” on Proposition 22, the survey asked me if I liked wonderful things, in an attempt to imply that only Proposition 22 would offer me wonderful things and that voting no on Proposition 22 would deny them to me.
I mean, the rideshare/delivery companies basically query, “Do you like having two hands?” You readily say that you do. They reply, “Well, unless you vote ‘yes’ on Proposition 22, one of your beloved hands will be cut off.”
I heard so many Proposition 22 commercials with drivers exclaiming how much they loved working on their own schedule, as if being an employee immediately and completely robs you of all scheduling options. There are many jobs that let you schedule your work shift around daycare, family, a second job or other responsibilities. It’s not like being an employee means you can never participate in your own scheduling. Furthermore, sometimes rideshare/delivery limits your scheduling. Sure, you can open your app and go online any time you want, but that doesn’t mean you will get work. Don’t think for a moment that the gig employers don’t have a way of controlling your work hours. They control your work hours by controlling your earning hours.
If a gig company needs drivers in Alameda County between 5 pm and 7 pm, then they simply won’t give drivers any rides or deliveries at any other time. Then, the driver will be forced to work from 5 pm and 7 pm to make money. There have been many times as a gig worker when I’ve sat in my car for hours without one job notification. And don’t think that you’re not getting rides or deliveries because there are no customers. That’s not always the reason.
Do you ever talk to other drivers in your area and see that some of them are really busy while your own phone app is as quiet as a tomb? The rideshare/delivery companies, or their algorithms, will stop sending you trips if you don’t work enough hours, don’t deliver food (that is, for instance, if you prefer to only do rides, rather than to do both Uber Eats and Uber rides, too), don’t deliver alcohol, don’t finish fast enough, don’t work in the locations they want, reject too many jobs, or have a low customer rating. And by low, I mean, you can have a rating of 4.9 out of 5.0 and still get punished for it.
You don’t earn when you want to earn. You earn when they let you earn. The idea that you schedule your own hours as a gig driver, but have no involvement in scheduling if you’re an employee, is a myth. Proposition 22 promoters are insinuating that if you are an employee you are required by law to have a set schedule and that’s not the case. You can find employment that will give you just as much scheduling flexibility, or just as little, as rideshare/delivery does.
3. Healthcare Stipend
In California, gig drivers are being offered a health care stipend if they average a certain number of work hours a week, per quarter. But guess what? Employers offer you the same stipend. The stipend is not unique to the gig industry. It’s the rideshare/delivery companies’ attempt to give you a fraction of the protection you might receive as an employee. They aren’t giving you anything you wouldn’t get if you were an employee.
Employees get paid sick leave in California, as a matter of law. As long as the rideshare/delivery drivers are not legally considered employees, they are not entitled to sick pay. However, some gig companies are offering sick pay, as an incentive to keep Proposition 22 intact. The point is, employees don’t have to depend on the kindness of the rideshare/delivery company to stay home sick, with pay. Employers have no choice. They have to give sick pay. The Rideshare/delivery company does have a choice: to pay or not to pay. They want to keep it that way. They may offer sick pay when they need it to keep “independent contractors” working for them. But when there is no driver shortage and Proposition 22 is not at risk of being overturned, they can go back to doing whatever they want. And what they want to do is cut costs.
The survey I received boasted that you don’t have to do an interview to become a gig driver. No, but you have to undergo a background check. Not all employers require a background check. Even worse, some gig companies require an annual vehicle check and insurance check, which costs the gig driver money and time. The onboarding and administrative process isn’t less for a rideshare/delivery driver than it would be for an employee. Furthermore, the hiring process varies from employer to employer. It is not as if being an employee means you automatically have to be interviewed.
6. Gig Drivers are Called Independent Contractors, but they Don’t Have the Freedom that Real Independent Contractors Enjoy
Long before Lyft or Uber existed, I supplemented my income through self-employment. Being my own boss benefits me and my lifestyle. Therefore, I have nothing against independent contractorship in theory. But in practice, that’s not what you get at a rideshare/delivery company. An independent contractor should get to set or negotiate his own price.
More importantly, they should get to make decisions about the jobs they take, based on all information available and they should not be penalized when they refuse a job.
If you want to call me “independent,” then give me the information I need to make my own choices. Tell me what the base pay for a trip is upfront. Tell me exactly where the destination is. If I am delivering items, tell me what building I will be delivering to. Does it have stairs? Does it have an elevator? I don’t mind delivering 5 bags of dogfood to a house, but if it’s not a house, if it’s an apartment where I will have to walk up three flights of stairs, then I do not want that delivery. A moving company asks if the movers will have to use stairs. Why can’t the delivery companies ask customers this?
Why can’t the delivery companies ask customers if there is a gated entrance and let the driver know if there will be a buzzer or access code. If there is one, the driver can easily get to the delivery destination. I cannot tell you how many times I have delivered food, only to find that the customer is in a gated community and they cannot let me in. They tell me to wait until another tenant comes through the gate and then I can drive in behind that other person. They act as if my getting the food to their door, is my problem, not theirs. No. If you can’t buzz the driver in yourself, then you shouldn’t order food. Don’t tell me to waste my time waiting for someone else to come and let me through the gate.
As an delivery driver, sometimes it took me as long to deliver the food once I reached the destination community (i.e. an apartment complex) as it did to shop for the food in the first place. The gig company doesn’t care if it’s a difficult delivery, because they are not losing money, I am. Tell me I am delivering to an apartment with stairs and give me the choice of passing on that delivery. Let me refuse certain customers who have been rude to me in the past. Let me refuse certain destinations. Let me turn off shared rides, if I don’t want to drop off multiple passengers at different places. Let me reject multiple stops, if I don’t want to be stuck with certain shady passengers on a return trip (back from their meth dealer’s house). And if I do decide not to take a job, don’t penalize me for refusing it.
If you give me fewer rides or deliveries because I rejected offers, then you are not treating me as an independent contractor. True independent contractors are not punished for rejecting work. The truth is, the gig companies control the drivers just like employers do. They just do it through an app, rather than in person. The app tells you you’ve been idle too long. It tells you the job is taking too long. It tells you you’re taking the wrong route. It scolds you. It’s not the boss standing over your desk. It’s the boss in your phone notifications.
7. Employment Offers Protection and Benefits that the Gig Companies Don’t
The gig companies claim you have the freedom to do your own scheduling. You don’t. But even if you did, whoopee. There is plenty you don’t have as an independent contractor, rather than an employee.
You don’t have overtime if you are a gig worker. California employees are paid 1.5 times their regular salary if they work more than 8 hours a day or 40 hours a week. Gig drivers don’t get that and they often have to be online at least 8 hours a day to take home just $100.
You don’t get worker’s compensation if you are a gig worker. That means, if you are injured on the job and cannot work, you go without pay.
Without state and federal government intervention, especially during Covid, California gig workers would not have been entitled to unemployment either. That means that for all those months that the rideshare market stalled because no one was traveling during quarantine, gig workers would not normally have received Unemployment, because independent contractors do not get unemployment.
Performing gig work may seem attractive because no social security payments are being taken out of your pay. However, what happens when you are no longer able to work at some point down the line? If you have not paid into social security because you were deemed an “independent contractor,” then you won’t get a social security check.
8. No On Call Pay
Gig workers are not paid for the time they spend “on call,” but not working. If you work at Starbucks, business may slow to a crawl at 3 pm, but you still get paid for it. Gig workers don’t get paid when they are not actively driving, picking up or shopping. I’ve sat near the airport for 2 hours waiting for work and that was 2 hours without pay. It’s not as if I can run errands during the down time, because if I am in the middle of something else and cannot take the ride or delivery within seconds, I lose the opportunity. I have to remain open to work, even when I’m not working. I’m not earning during the idle time, but employees are.
Now, there are some exceptions. Sometimes, if you remain online and accept a certain percentage of jobs, during X number of hours, you will get paid for the time, even if you are not driving. But in order for that to happen, you essentially have to follow a set “schedule”. You have to work for a promised time frame if you want to get paid, no matter what. That means, if you want to earn money even when you are not actually on a delivery or trip, you have to keep a schedule. I thought scheduling was a nasty word for the gig companies, but they make you do it for guaranteed earnings, just as employers do.
9. Gig Workers Aren’t Paid for Expenses
If you accept all the rides the gig companies offered you, you’d be driving your Toyota Camry all the way to Timbuktu and you’d have to pay for every ounce of gas you spent to get there, out of your own pocket. They don’t pay you for the drive to a store or passenger. They only pay you upon arrival. I’ve had rideshare companies send me 15 miles, for a 5 mile trip. Worst of all, sometimes the drive is wasted. You don’t get the fare and you lose the gas money and time, for reasons out of your control.
In the past one delivery company had a huge problem with sending drivers out only to find that a store was closed, especially on Sundays or holidays, when operating hours changed. I would accept a delivery and then drive to the restaurant only to find it had closed two hours ago. One delivery company would not pay me for driving to the closed store. That was the reason I ultimately stopped driving for them and went to Caviar instead, years ago. At that time, Caviar paid the driver full price, if she arrived to find the restaurant closed.
You aren’t paid insurance. You aren’t paid for the use of your cell phone. Sometimes, you aren’t paid for tolls, even if the delivery gig app sends you on toll roads. California employers have to pay employee expenses, but gig companies don’t have to.
This is the truth that’s not in their advertising. If you want to support Proposition 22, you definitely should, but do it after you’ve been told all the facts. Don’t do it based on false or misleading advertising. The promotions and surveys would lead you to believe that rideshare/delivery offers you more as an independent contractor than you would receive as an employee. That’s just not true. Furthermore, the gig jobs don’t even offer true freedom. You may be a contractor, but you’re not really “independent.”
The gig companies are going to use any completed driver surveys to influence the court into upholding Proposition 22. Therefore, know that if you want your own scheduling, a health stipend, sick pay and no interviews, you can receive that and more from employment. Employment also offers benefits that rideshare/delivery work, under Proposition 22, will continue to ensure you never have. If that alarms you, then open the survey and say you support worker rights, but let your survey answers show you don’t support Proposition 22, which curtails those rights.