A California judge denied a request for a temporary restraining order (TRO) made on behalf of a proposed class of Uber drivers who claimed that the ridesharing platform sent “coercive” campaign messages concerning California’s Proposition 22, a proposed addition to California labor laws, on the Uber app.
Judge Richard B. Ulmer in the San Francisco Superior Court said in his Oct. 28, 2020 decision denying the application for injunctive relief that the request made by plaintiff Benjamin V. and other plaintiffs was “belated” since the Proposition 22 campaign began in August. Judge Ulmer stated, “Why plaintiffs waited months to sue and seek injunctive relief is not explained, and such delay casts doubt on their case.”
The Two-Prong Test to Determine Whether a Preliminary Injunction Should be Granted
Judge Ulmer turned to the two-pronged test used in California courts to determine whether the TRO should be granted, opining that Uber prevailed on both prongs.
The judge said that the “relative interim harm” prong of the test concerning the issuance or non-issuance of a restraining order weighed in Uber’s favor since the “interim” before the Proposition 22 vote was just six days. Accordingly, he said any TRO concerning the initiative would be rendered moot after that time, and there would no longer be a necessity for injunctive relief.
Additionally, the judge remarked that Uber drivers are not being punished if they don’t cooperate with Uber’s Proposition 22 campaign or if they speak out against it, saying, “Even Uber drivers who complain about the Uber campaign claim minimal change to their behavior. No reason exists to believe that this lack of harm will change during the six days Uber’s campaign continues.”
In his order, the judge addressed Uber’s claim that a TRO enjoining the ridesharing app from sending its campaign messages would violate its First Amendment rights of the company and its drivers. Forbidding Uber’s political speech activities would constitute a “prior restraint,” that seriously infringed upon First Amendment rights, the judge said.
The judge also said that if the request for the TRO were to be granted, it would “require Uber to disseminate plaintiffs’ messages — e.g., to ‘inform’ drivers that they have ‘the right to vote. . . against Proposition 22 or not vote at all.” He said, “This compelled political speech would ‘require even more immediate and urgent grounds’ than the compelled silence of a prior restraint.”
Alleging that Uber’s messages concerning Proposition 22 were “false and misleading,” Benjamin and the other plaintiffs argued that the messages at issue lacked the protections of the First Amendment.
The judge found that since the proposed class could not demonstrate that they were likely to succeed on the merits of the case, they failed to satisfy the second prong for the TRO test.
How Would Proposition 22 Affect Uber Drivers?
California Proposition 22, also known as the “App-Based Drivers as Contractors and Labor Policies Initiative,” if passed, would generally define Uber drivers as independent contractors unless specific circumstances were met. Critics of the bill argue that it would effectively exempt ride-sharing companies from the “ABC Test” codified by Assembly Bill 5 (AB5), that set forth strict criteria in order to classify workers as independent contractors.
Proposition 22 would also establish an “Earnings Guarantee,” establishing a minimum level of compensation based on a “net earnings floor” specified in the bill and require that a health care subsidy be provided to app-based drivers who qualify. The bill also includes provisions for loss and liability protection, medical expense coverage in the event of an accident, and anti-discrimination and public safety protections.
The bill has been contested by drivers and labor groups who argue that greater protection is afforded to app-based drivers under the “ABC Test” in AB5. Ride-sharing companies assert that the bill would allow drivers the ability to continue to have the flexibility of independent contractors while offering certain wage, hour, and other protections.
What Is the ABC Test?
Signed into law in September 2019, pursuant to AB5, California’s “ABC Test,” presumes that a worker is an employee unless all three prongs are met:
The worker is free from the control of the entity that hired them in contract and in performance of the work, and
“The worker performs work that is outside the usual course of the hiring entity’s business,” and
The worker is engaged in an independently established business or is involved in an occupation of the same nature as the work performed.
An employer cannot classify a worker as an independent contractor in California unless each of the three criteria are satisfied.Workers classified as employees in California are entitled to certain rights and protections under the state’s labor laws.
The same rights and protections do not apply to independent contractors. In California, employees are afforded wage and hour protections, overtime, meal and rest breaks, Workers’ Compensation, paid sick leave, unemployment, and other benefits.
The Proposition 22 TRO Case is Case No. GCG-20-587266, in the Superior Court of the State of California, County of San Francisco.
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