Lyft drivers protested for better wages outside the Omni Hotel, where executives reportedly were meeting with investors ahead of the company’s initial public offering in March 2019. (Kevin N. Hume/S.F. Examiner)

Prop. 22 puts health of Lyft, Uber drivers at risk

Sneaky wording in ballot initiative would leave gig economy workers in the lurch

The November 2020 election in California features a couple of large, health-related ballot initiatives. In contrast to Proposition 14 (to boost stem cell testing) and Proposition 23 (to change laws around kidney dialysis centers), Proposition 22 — which was put on the ballot by Uber, Lyft, and Doordash to exempt their drivers from California labor laws — doesn’t scream “health emergency.” But in reality, a yes or no vote on Prop. 22 heavily impacts access to affordable health care for hundreds of thousands of people statewide.

The workers’ rights battle between the state of California and the gig economy started years after it should have. Lyft and Uber had already been operating for six years by the time Assembly Bill 5, which switched the classification of their drivers from independent contractors to employees, was introduced.Under state law, this change mandates the companies provide them with benefits.

Prop. 22 is a last-ditch effort to stop AB 5 from being implemented. While the ballot measure provides some benefits, it is very much a watered-down version of what the state would require, and it’s full of holes.

A broken health insurance promise

Prop. 22 states that drivers who work more than 25 hours per week of “engaged” time (i.e., with a customer in the car) would receive a health care subsidy amounting to 82 percent of the average California Covered premium each month. There are two major flaws with this.

First, in a May 2020 study of 643 drivers in the Bay Area, data shows that while nearly a quarter of the gig economy workforce drives more than 30 hours a week, many spend a third or even half of that time waiting for rides. That means that while your app may be on eight hours a day, it’s possible only five of those would count toward accrued time for health insurance.

“There’s a significant subset of full-time workers who wouldn’t be covered, even under this ballot initiative,” says Rey Fuentes, a fellow with the Partnership for Working Families, who has spent the past few months debunking much of what Prop. 22 claims it will do. “The companies come out and say ‘most of the drivers are part-time anyway’ but then seem to suggest that those part-timers are going to get some sort of health coverage, when in fact they’ll never see a cent.”

Second, even if a driver does reach the engaged time threshold that would qualify them for health care subsidies, there is no agreed-upon amount that workers would receive for their Covered California health plan. There is no statewide monthly premium; plans vary heavily based on geographic location. And while the ballot initiative demands that premium be created, it wouldn’t happen until after voters pass it.

“That’s problematic,” Fuentes says. “Health care coverage plans and premiums under Covered California vary dramatically by geography. Using a statewide average really does a disservice to urban drivers who are the primary backbone of this company. If you’re going to offer a benefit, this is one way to erode it.”

The potential human impact of these policies is devastating. With subsidies dependent on hours, drivers may be forced to work even when they’re not well in order to meet their engaged time quota.

Driver Edan Alva, who was profiled in an amicus brief against Uber, knows the pressure all too well. “Before the pandemic, I’d drive knowing that I had to hit the same earnings target each day or I’d start missing my rent payments,” he said. “I was one illness away from potentially putting my family out on the street. And without sick leave, I was forced to continue driving, even when I wasn’t 100 percent. Now in a pandemic, it’s inexcusable that workers are left without basic protections.”

A faulty disability insurance plan

The disability insurance offered through Prop. 22 is watered down, too. Under California state law, employees can receive a lifetime of disability payments for injuries incurred on the job. Under Prop. 22, those payments would be capped at 104 weeks. And, that insurance would only be handed out if drivers were not deemed “at fault” for their disability, the terms of which are unclear.

Driving full time can take a significant toll on one’s body. Eduardo, another driver profiled in the amicus brief, who didn’t provide his last name out of fear of retaliation, said he had to drive longer hours after pay cuts in 2018.

“I started developing extreme knee pain that became unbearable, which sent me to the emergency room,” he stated. “After a five-day hospital stay and two months of physical therapy, I was finally diagnosed with gout, a condition exacerbated by prolonged sitting. Throughout this ordeal, I had no access to sick leave for my emergency room stay and no access to paid family leave or disability insurance during my recovery. This will likely force me back to work sooner than my doctor recommended since I have no other way to provide for my family.”

Lack of support during COVID-19

Finally, companies that rely on gig drivers have done little to support efforts to reduce the spread of COVID-19. Again, it comes down to that tricky little rule around “engaged” time.

“During this pandemic, drivers are taking extra steps to make sure we’re safe and passengers are safe,” said driver Mekela Edwards. “But we seem to be alone in this regard. I was disinfecting my car after every ride, but Uber and Lyft paid me nothing for my time cleaning. This can’t possibly be the right incentive if you want to make sure drivers go the extra mile to keep everyone safe.”

In an op-ed for the New York Times, Uber CEO Dara Khosrowshahi repeatedly highlights the value of independence for drivers, stating that “Unlike traditional jobs, drivers have total freedom to choose when and how they drive, so they can fit their work around their life, not the other way round.”

But he also acknowledges that “The freedom to work whenever you want comes with a serious drawback: When the worst happens, too often you are on your own. There has historically been little to no paid support for independent workers if they couldn’t work — if they wanted to take a vacation, or, more important, if they got sick.”

That last statement marks a major shift in acknowledging the failures of Uber’s current system, so it’s a shame the ballot measure does little to mitigate it. Prop. 22 has become the most expensive ballot initiative in state history; as of Sept. 16, more than $192 million had been poured into efforts to help it pass. That, combined with deceptive wording on benefits that requires a deeper dive to debunk, means it’s going to be a tough initiative to beat.

For Lyft, Uber and Doordash, its failure would be financially devastating. But for the workers who are the backbone of the gig economy, Prop. 22’s failure is a matter of life or death.

Got a tip or a story idea? Shoot me an email at nuala.bishari@gmail.com.

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