Order 20
Introduction
The rise in the number of immigrant workers in the gig economy presents many challenges. There are divided opinions on the issue of their employment and labour rights. In line with this, the ride-hail and delivery drivers also face similar issues and are prone to abuse. The relatively recent proposals in the Prop 22 and the proposed federal law HR41 this issue. The two have faced considerable public backlash based on how little they cater for the rights of immigrant workers to collective bargaining, minimum wage among others.
This research seeks to evaluate how the proposed laws fail to protect labor rights for immigrants. It shall first analyze the effects of these laws on ride-hail and delivery platform drivers based on the research by relevant institutions and organizations. The paper shall then highlight the various demographic research that indicates an overrepresentation of the immigrant drivers. This will be done with close attention to the need reliance of these workers on the full-time driver workforce. Consequently, this paper shall look into the experiences of immigrant workers and people of color in the industry, highlight the major challenges they face. The paper shall conclude by reviewing the possible advantages of PRO-Act 2021.
- Summary of Protect App-Based Drivers and Services Act of 2020 (Prop 22) and Protect the Gig Economy Act of 2021 on ride-hail and delivery platform drivers.
The Prop 22 law proposes drastic changes aimed at protecting app-based drivers. Its purpose does seem prudent and noble in paper but, on closer scrutiny, it creates a more detrimental situation. Some of the issues raised here are:
Anti-discrimination laws
A major issue is the lack of concrete protection against anti-discrimination. Thus the key consideration in this case is whether the Prop 22 offers adequate protection for drivers using the app-based platforms. Per the proposals provided, the anti-discrimination regulations are greatly narrowed and limited. It has even been considered as a paler less effective safeguard as compared to previous laws in California. Whereas the listed grounds could offer some relief, the means of implementing this protection make it difficult.
Without clear enforcement the rights are essentially meaningless. The implementation is made hard by the fact that the time to file the complaints are short. Also, the internal structures required to work on the complaints from drivers are ineffective. Thus, where there are cases of verbal, non-verbal discrimination and abuse, the worker cannot seek to enforce his right to protection as the complaints are not worked on. This ranges from relatively small cases of verbal abuse to major cases where the drivers of color are threatened or attacked by workers.
The ineffectiveness of the corporation to worker complaints makes it difficult to ensure anti-discrimination protection. The situation is made even worse with the lack of an effective framework in Prop 22, meaning that the victims are not protected by either the corporation or the legislation in place. Based on the fact that a many of the platform ride-hail drivers, there would be a more pressing need to address these issues, however, little has been done. Moreover, the laws fail to protect immigrant workers from the discrimination based on historical traits. Issues such as referring to Asian workers as “Orientals” or referring to African Americans as “ghetto drivers”.
Poor Working Conditions
Another issue evident in both the Prop 22 and HR41 is that they substantially expose the drivers to substandard working conditions. The impact of Prop 22 for instance is to reduce the number of rights of the immigrants. An example of this is the lack of overtime benefits to the workers. Moreover, the working conditions exclude the immigrant workers from benefits arising out of work injury compensation. Additionally, the drivers are not eligible for benefits such as occupational hazards amounting the work environment.
Another key issue is that the immigrant workers are denied their basic rights to health care and access to essential labour benefits. These benefits and privileges include the sick leave, maternity leave and compensation on disability. It is important for the health of the drivers that the driver take time off and be allowed to take a break. A key example is the application of the Prop 22 and the HR41 to deny the rights of workers to essential health benefits. Whereas the companies use almost two million dollars sponsoring the proposed amendment, to save up on the costs to be incurred by the companies in meeting the costs.
The drivers also have no right to family leave or days off. This includes but is not limited to the right to sick leave for affected workers. They are also not eligible for insurance compensation based on disability and work injuries. The condition is more evident in the face of COVID-19 as workers do not have protection against the virus. For instance, the companies do not cater for the need to provide protective equipment. The companies have not improved the situation with some offering the protective gear up for sale.
Collective Bargaining
The right to collective bargaining is important as it enables the workers to collectively advocate for the rights Prop 22 makes it effectively difficult to change the terms of employment. This bars the workers from improving unsubstantial work situations. The reason for this is that the workers who may change the terms may face deactivation from the application. This weakens the state of the collective labour rights and privileges. It also takes away the important right of drivers to change their work situations.
Any change to the various terms and clauses would require an amendment into the Prop 22 proposals. Moreover, the fact that a 7/8 majority is needed in order to change the law indicates the difficulty and rigidity brought about by the law. The impacts of this were that the drivers were not able to enjoy the same rights and privileges accorded to employees. This includes important labour rights such as the right to form trade unions. The right to unionize is a very important right as it enables the employees to collectively advocate for their rights. It is limited to persons classified as employees and only employees can form and join trade unions. Those in trade unions can then carry out and engage in collective advocacy for better working conditions and better pay.
The impact of this to the immigrant workers and the people of color would have a great difficulty in the event of a change in the law or the contracts. Collective bargain would involve the negotiation and renegotiation of the terms of their contracts including key terms such as the increase in wages and better working hours. Without this key right in the contract the immigrant workers do not get any form of collective advocacy of their rights.
- Driver demographics
This section shall look at the extent to which immigrant driver and drivers of color have populated the platform ride-hail industry. Its first important to understand the statistics of immigrant workers in the sector. Immigrant workers account for about 69% of the total workers who are platform workers. Of all the states, California has one of the most diverse with most of the workers in the drivers in Lyft and Uber being either racial minorities or immigrants. The rates in other states vary but prove the point that most states have a predominantly immigrant flooded economy.
In San Francisco 56% are immigrants making up almost half of the total workers in the industry. Of this number a great majority are low-income earners who struggle to make a living and are heavily dependent on the driving platforms. Majority also work about 70 hours a week to make ends meet. Moreover, 71% of the workers make ¾ of their income from the ride-hailing services they offer. Prop
A majority of these workers are low-income earners. They are dependent on the on the platform network work they do. These drivers are hence heavily dependent on the work they do for these corporations. Having almost 78% of the population of ride-hail drivers, means that a substantial amount of these workers will be subject to the unfair provisions above. Moreover, the gig economy workers are mostly people within the working class. They are hence heavily dependent on the work they do for the platform providers.
Most of the workers also depend on working as full-time workers. This is based on the fact that most of the people in this industry see it as an opportunity to earn a living. There is arguably an overrepresentation of these of the people of color in the industry. The workers in this case are therefore, fully dependent on the jobs. Working full time enables the workers to make the most of the are thus completely dependent on the industry.
- Work experiences in the sector
The changes proposed by the HR41 and the Prop 22 have far-reaching impacts on the drivers. A few of the issues raised detail the two pieces of legislation relate to the fact that it is backed and funded by the big corporations in the gig economy. Also, both laws seek to roll back progressive improvements made by the AB 5 laws enacted previously. They result in most of the workers being reclassified as independent contractors rather than employees. The effect of this is that, most of the workers, being immigrants and people of color will not enjoy the rights and freedoms previously guaranteed.
The situation is more problematic when noting that most of these workers are heavily dependent on the business for a bulk of their monthly income. There are also serious problems arising out of their application to the labour disputes and the employment contract. This section of the review shall analyse and highlight the key problematic areas and the views of the affected persons.
- Longer work hours
HR 41 and Prop 22 reduce a lot of the benefits accrued from previous legislation. In order to get substantial incomes, the workers have to clock in substantial “engaged time” under the Prop 22. The sum for all engaged time here will be the sum of 120% of all the applicable minimum wage as contained in Article 3 on Compensations. Applicable minimum wage is defined as the minimum wage paid by all industries. Where a driver picks up a passenger, the location at which that passenger is picked will determine the applicable minimum wage and this will apply throughout the engaged time. The engaged time here means the period of time the driver accepts the request and completes the request from the network. This is exclusive of the coverage the driver makes while waiting to accept a request.
Also, in order to qualify for various medical benefits, the worker has to work for more engaged time. This essentially means that workers with less engaged time do not qualify for the privileges therein and are therefore at a disadvantage. They will then have to work longer hours in order to meet the expected threshold. As a result some workers work for as long as 40 hours a week while others have to work as long as 70 hours a week in order to make ends meet.
Many of the workers view this as an abuse of their employment rights as it creates an unfair working condition. It is also important to note that only a few can meet the high threshold required. There are many similar drivers trying to carry out the same business in a relatively shrinking market. There is also the need to cater for exhaustion and the possibility that many of these workers are prone to work related stress. The situation is worsened when noting that there are few who will be eligible for work injury benefits or medical insurance arising out of these aliments.
The drivers thus view this as an abuse of their rights by big corporations who take advantage of their dependency on the app-based driving apps. Many of these views have been expressed in protests and ongoing bouts on social media. The bulk of which attribute the treatment as discriminatory on the large immigrant and people of color populated industry. They feel let down and unprotected by their employer. Furthermore, there are some who cite the laws as being motivated only by the large financial profits to be made out of worker exploitation.
- Dependency on the apps for monthly income
As aforementioned, many of the drivers view the app-based driving as a major source of their livelihood. It was, in their view meant to facilitate a quicker more beneficial way of earning a living. Thus, majority of the workers, over 56% rely on driving as their main source of income. The previous legal dispensation allowed for greater flexibility in earning money for their sustenance. For instance, a great majority of the workers could easily work as part time or as full-time workers and were allowed to switch in between depending on their individual situations.
Also, the returns from each were not as low. A full-time worker needed to work at most 32 hours a week to take home a substantial amount of money enough to cater for basic needs and additional expenses. The average part-time worker would work for less clocking in about 12-15 hours a week but still gain enough money enabling him/her to make enough to make ends meet. Workers could hence have the freedom to choose between the two and still make enough money to meet their expenses. The flexibility was taken away with the passing of HR 41 and Prop 22. In order to make ends meet, a majority will have to work fulltime. Thus, the great number of fulltime workers.
These full-time drivers have to contend with less pay for long hours. Under the new law that evaluates payment based on engaged time, the majority of workers have to clock in more hours and be more of fulltime drivers in order to get back more substantial returns. The situation is made more worse with the lack of benefits. The use of engaged time in the view of some drivers sees them loose important benefits such as medical cover, unemployment insurance and rights to collective bargaining. Since majority of the drivers are now forced to be full-time drivers as they are very much dependent on the income they receive.
- Discrimination
The bulk of immigrant and people of color in the gig economy has led to cases of discrimination. Some drivers attest that at times passengers make racist comments while the ride is in progress. Moreover, others argue that they have been victims of discrimination with regards to the manner their complaints are treated against consumers who receive deliveries. Others state that whereas the statements are not followed up by any form of violence, they feel affected and attacked.
Drivers, mainly African American women also feel that the Prop 22 and HR 41 are discriminatory in their application. The impact of the two laws will see them underpaid while still working long hours without basic employment and labour benefits. These benefits are enjoyed by other employees in other industries but through the new legislation, they will be denied their basic employment freedoms. There is also no clear-cut framework on how the complaints of the workers are to be investigated, Internal policies are seen as merely aesthetic in nature offering no real enforcement procedures.
- Impacts on other workers
Prop 22 and H.R. 41 do not affect immigrant workers and people of color alone, in fact, it acts in a detrimental manner towards the general rights of other workers outside this group. It is important to note that other drivers not BIPOC/immigrants, also rely on the apps for their livelihood. A large percentage of these drivers depend on the apps for their monthly income and will be affected by the exploitative provisions.
For instance, a majority of the workers will still be ineligible for insurance and employment benefits if they do not meet the high threshold for engaged time. The workers are also low-income earners and rely fully on full-time work arrangements to ensure maximum gains out of the engaged time. Also, the Prop 22 and the H.R. 41 accord the hiring entities more discretion and power over the employment contract. This exposes the workers to the danger of abuse and exploitation.
These drivers are also affected by the fact that the right to collective bargaining is place far from reach by the pieces of legislation. The laws place considerable hurdles to the right to collective advocacy of rights. They effectively make some drivers independent contractors meaning they cannot form or join trade unions. Also, they make the renegotiation of terms to the contract virtually impossible and difficult. There problem is made more depressing when you factor in that Prop 22 will take a majority of 7/8s to amend or repeal.
- Impacts of the Prop 22 and H.R. 41
Having assessed the qualitative and quantitative research on immigrant workers in the gig economy, it is essential to loom at the detrimental impacts of both laws on the employment relationship. This section shall then look at various problems facing the drivers in the industry as a result of the legislation. These include;
- Disproportionate Application
The first issue is that there are considerable issues as to the equality and equity in the application of the legislations. Being backed by corporate players in the gig economy. For instance, Uber and Lyft who are the major financial supporters, are seen to accord themselves a bulk of discretion relating to matters of employment contracts. What this creates is an uncertain haven of sorts. Each company has its own internal structures that would regulate the hiring and negotiation of the contracts.
The law also proposes that permanently disabled workers will only get payments for a maximum of 104 weeks. This along with the restriction on the death benefits for survivors, means that the families of the affected parties are at a more disadvantaged. Families may lose their breadwinners to the occupational hazards and work-related injuries. They are thus unable to earn a building. Now under the previous laws, the families could be compensated.
The application of the law will thus depend on the internal policies of the corporations. This leads to discrepancies in the situations of workers. Also, based on the thresholds required for the driver to get insurance and the medical benefits. These benefits are dependent on the individual policies the driver undertook and paid for. This means that the application of the law will vary from person to person.
The effect of this is that the workers working for the same company will have a different rule applying to the workers. Also, in general terms, the same rules do not apply to workers in similar work description will have different rules applying to them. This means that the workers will have difficulty to collectively seeking the advocacy for their rights.
Wages and work conditions
The other issue that the wages and work conditions of immigrant workers are very unsatisfactory. The wages for instance are lower than that previous legislation. The calculation of the wages is evaluated by the engaged time. The calculation of engaged time does not in this case amount to substantial amount of money. The wage also does not include the payment and reimbursement for various work-related expenses.
Concerning the issue of working conditions, drivers work longer hours for a lower pay. The workers also go for long hours without any worker benefits. Furthermore, they have to contend with no occupational hazards insurance and unemployment insurance making their working condition all the more depressing. The impact of both of these laws is that the worker cannot get fully reimbursed for the injury or disability arising out of a work-related accident. Furthermore, his/her family does not have any form of compensation in the event of death or permanent disability. The driver is thus left unprotected and unsecured against the harms of work.
Additionally, workers have to also contend with the lack of medical cover. There is, in theory, medical cover offered within the legislation, however this provision is greatly limited and narrowed down. Only a few can benefit from sufficient and beneficial medical cover while those unable to get better personal policies are given a substandard cover. The impact of this is that the drivers may end up without substantial medical care in the event of injury or sickness. They already have very low wages not enough to cater for their daily expenses and will now have to bear the steep medical costs.
The implementation of labour rights
The drivers also have diminished labour rights under the H.R. 41 and Prop 22. The right to collective bargain is all but inexistent. This is made possible by two key factors. First the inability of the workers to join and form labour unions as a result of many being reclassified as independent contractors. The H.R. 41 does rely on the AB 5 definition of an independent contractor, the Prop 22 in application reclassifies a large amount of the workers. Second, the employment contracts are significantly hard to negotiate and renegotiate. The contracts do not allow an inroad for the trade unions to have a say in the renegotiation of contracts.
Another important right to voice their opinions and advocate for their rights. The laws substantially seek to silence the voice of drivers. The workers cannot voice view as this will require a renegotiation of the whole contract which has no procedure for renegotiation. It makes the contract virtually unchangeable. The companies also rarely consider complaints of the workers with some being suspended from the apps when too many complaints are sent.
Moreover, there is a lot of pressure from the companies on their workers. Using such schemes as the suspension of workers to ensure that they keep silent. Whistle-blowers are also subjecting to bans. Drivers who bring up such issues to the public, are either suspended and/or banned from the apps. The impact of this is that few workers will be less motivated to go on strike or collectively advocate for their rights.
- Summary of Pro-Act and its possible impacts
There is need to ensure that even in the complicated nature of the gig-economy contracts, that the employee’s rights are protected. Pro-Act or the Protecting the Right to Organize Act is an attempt by legislators to improve the situation of drivers brought about by the Prop 22 and H.R. 41. The Act recognises the need to cater for the social economic inequalities and issues in society. Such as the fact that majority of the workers are immigrants prone to exploitation and abuse by the corporations.
The act focuses on four key areas in which its promoters see as the key target areas in the economy. These areas include the right to unionise, the protection of the drivers against anti-labour rules and the it provides for the enforcement of rights of the drivers. The new act also provides for more freedom in terms of the rights of workers to voice their concerns and actively take part in the negotiation of contracts. Also, the Act majors on the rights to unionise. This right is based on the classification that is given in the AB 5. As a result, majority of the drivers and the workers are classified as employers who would then qualify for the employment rights.
First, the legislation provides for the right to unionise that is free and fair. The trade unions provide the workers with the right to jointly advocate for rights. The issue of trade unions was absent in the former Prop 22 and H.R. 41. Trade unions enforce the important right to association to the many drivers. Furthermore, the Pro Act requires that the internal policies and structures to devise internal means of incorporating the trade unions. This arises out of a long history of employers engaging in anti-unionisation drives. The act also wishes to impose penalties for those corporations that infringe the workers rights to unionise.
With regarding the enforcement of the rights, Pro Act provides for far reaching implementation procedures. The rights to collective bargaining are some of the rights of that have gone unnoticed and unimplemented under the previous laws. The implementation of these rights is proof that the law in this regard takes note of the existing issues in the law. Moreover, there is need to protect the rights to fair and adequate benefits in order to reduce the power imbalance and existing social-economic inequalities. The law places subtle penalties that are to be imposed on the corporations that do not provide for the inclusion of collective bargaining. As such, the act positively advocates to allow the workers to collectively advocate for the adequate work benefits.
The penalties imposed range from as low as $500 for evert violation to as high as$100,000 where the employer commits another violation during the period of five years. The large civil penalties act as a form of deterrent against future breach of the labour rights. In such cases, the onus is on the corporation to prove that the employer was in breach of the labour and employment rights. Trade unions are also allowed to take part in protests and industrial action against businesses that do not implement the labour laws. The violation of labor laws is hence enforced both at the legislative and at the worker through labour unions.
Concerning the issue of the issue of the ani-labor rights issues, the Pro Act requires that the corporations do not exploit or infringe on the rights of workers regardless of whether they are undocumented workers. This acts as a big push against the evident exploitation of migrant workers. Other possible positive impacts include, the prohibition on forms of lock outs that atre in essence offensive. Recurrent strikes are also safeguarded by the Act. It also provides the collective bargain order should be enforced against the certification. In such proceedings the employer should include laws that are self-enforcing. Thus the position of the employee is in a less precarious one than that presented in previous legislations such as the Prop 22 and the H.R. 41.
Conclusion
The fact that a bulk of the jobs held in the sector are held by immigrants and people of color. This means that the drivers are prone to abuse and exploitation. Exploitation arises out the lack of proper enforcement of their rights. Prop 22 and H.R. 41 are seen as the means through which the corporations take advantage of the workers and impose harsh laws. The provisions under the Pro Act (2021) are in place to provide the a more suitable more pro-labour approach to the problems raised in Prop 22 and H.R. 41.
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