Los Angeles community rideshare drivers and community groups came together for a press conference July 8, to urge legislators to protect the flexibility of independent contract workers in the new gig economy, while expanding modern labor protections like fair wages and benefits. The discussion at the press conference was focused on the recent Dynamex legislation that participants say, puts a limit on how contractors can govern their work day. Rideshare drivers shared their personal stories to illustrate the importance of keeping their flexibility as a safeguard to their personal livelihoods.
“Ninety-seven percent of African Americans say that being able to maintain an independent schedule is important to them, said Southern Christian Leadership Council, Pastor William Smart.
“Surprise expense for those in our community who live paycheck-to-paycheck, whether that is medical bills, high utility bills or time off to deal with other emergencies, as many as 4 out of 10 Americans can’t afford a $400 emergency expense. The ability to set one’s own schedule and work when and where you want has created a safety net. We need to preserve this opportunity.”
An existing law here basically states that an individual (i.e. driver) who performs services for a hirer (i.e. rideshare company) is an employee. In what is now known as the “ Dynamex” decision made last year, the California Supreme Court ruled that, to be a true independent contractor, workers must be “free from the control and the direction of the hirer,” performing work outside the company, and doing independent work in that trade.
“The Court, in throwing out 29 years of precedence and a near 30-year-old test, created an entirely new test for determining whether an individual is an independent contractor or an employee,” said State Senator Sharon Grove of the 16th district.
“Prior to this decision, the determination of whether an employer was an independent contractor or employee was based upon the 1989 California Supreme Court decision in S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations (1989) 48Cal.3d 341, where the Court created an 11 point “economic realities” test. This 11-point test known as the ‘Borello’ test largely focused on the degree of control the employer has over hours, equipment, and supervision.
“The new ABC test is a one-size-fits-all, far more restrictive and stringent test consisting of just three factors that makes it very difficult, if not impossible, for many companies and workers currently working under an independent contractor model to continue doing so.”
Under the ABC test, a worker is only an independent contractor if they meet all three parts of the test:
• The worker is free from the control and direction of the hirer in relation to the performance of the work, both under the contract and
• The worker performs work that is outside the usual course of the hirer’s business; AND
• The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hirer
Brian Dolber, an organizer with L.A.’s Rideshare Drivers United agrees with drivers and other gig workers, who want to keep their freedom, but says it’s “a myth” that becoming full employees would have to negate their flexibility.
“The CEOs [of Uber and Lyft for example,] are very strategically trying to give this impression that being an independent contractor means freedom and flexility, when in fact it means you’re given fewer and fewer rights than the rest of the workforce,” Dolber told reporters last year.
This year, the I am Independent Coalition is urging legislators to concoct a law that protects gig worker freedom as well as other aspects of their livelihood.
“Specifically, we are seeking a solution that includes:
• Benefits: Support portable benefits by allowing for a system of worker-determined benefits to provide security and modern labor protections.
• Representation: Support the development of an association for independent contractors to provide more of a voice in decisions that impact their livelihoods.
• Pay Standard: Support more transparency on driver pay and earnings for the work between accepting a ride or delivery and dropping off the passenger, meals, goods or groceries,” said a spokesperson for the organization.
“Surveys consistently show that overwhelmingly independent contractors want to stay independent and prefer it over traditional employment citing flexibility as their top reason,” said organizers.
“What attracted me to the Lyft platform was being able to make my own hours,” said Shataya Wilson.
“That flexibility allows me to pursue my goals in the music industry. The current legislation doesn’t include what it needs to include, which is us, the full time drivers who are out there daily taking people where they need to go, [including those who pose a danger like people who are drunk.]”
· According to an EMC Research Poll surveying independent contractors, given the choice, most would opt to remain independent contractors rather than become employees. Only seven percent of respondents say they would prefer to become an employee and no longer be classified as an independent contractor.
· The vast majority (88 percent) consider the flexibility of hours to be an important aspect of their work; 81 percent say the flexibility of location is important; and 65 percent say that the ability to do independent contractor work in addition to other work or attending school is important.
· The RideShare Guy also reported that 75.9 percent of rideshare drivers surveyed want to be an independent contractor.