A Chance to Defend Gig Workers' Rights in California

By Jeremy Gong, Jacobin

31 August 19

A new bill in California would end the legal loophole that allows Uber and Lyft to pay drivers incredibly low wages and avoid paying benefits. It’s no surprise that the companies are mobilizing against the law: their business model is based on abusing their drivers.

ber and Lyft declared war on their California drivers this week. The companies’ drivers have been protesting low wages and abhorrent working conditions in the gig economy, and in California, supporting a bill expanding gig workers’ rights which could be signed by Governor Gavin Newsom in the next two weeks. In response to the likely passage of this bill, Assembly Bill (AB) 5, Uber, Lyft, and other companies have already pledged to spend nearly a hundred million dollars launching a 2020 ballot measure campaign that would effectively invalidate the rule — and plunge gig workers back into the unregulated abuse and exploitation they currently face.

Workers of all kinds across California should support gig workers and the passage of AB 5, while getting ready to take the fight to the next phase by opposing the companies’ ballot measure. And anyone who supports AB 5 would do well to examine Bernie Sanders’s proposed sweeping workers’ rights legislation, including a federal law that will accomplish what AB 5 would accomplish in California.

What Is Ab 5?

AB 5 closes a major loophole in US labor law, employee misclassification. Major protections in US and California labor law — including minimum wage and overtime laws, the right to join a union, workplace safety protections, and more — cover most people classified as employees. However, many companies, including gig economy darlings like Uber and Lyft — but also many more “traditional” companies — misleadingly classify their workers as “independent contractors” to get around these laws.

Of course, it makes sense to create a separate legal category for people who are actually independent contractors: a self-employed plumber or accountant who directly establishes contracts with different clients and sets their own hours, rates, and mode of work while having to invest in their own tools and capital. But Uber and Lyft drivers are not, by any reasonable definition, “independent contractors,” despite what the companies may claim.

Drivers rely entirely on the companies to arrange contracts with clients — riders can only call a car through the company app, and drivers are not able to negotiate with clients. Companies set rates, extracting a per-ride price from the client based on an algorithm, and giving the driver a (small) cut of the revenue — without drivers having any say over this.

Uber and Lyft have control over who can be a driver, kicking drivers off the app for various minor infractions — just as a traditional boss can fire a worker for any reason whatsoever under our country’s system of “at-will” employment (unless the worker is represented by a union). And the much-vaunted “flexibility” of gig work is mostly an illusion: if drivers want to get enough clients quickly enough to make a decent living, they have to work certain hours that are always the busiest, such as rush hour or late weekend nights.

AB 5 would eliminate this loophole by instituting a strict test to determine if workers are employees or independent contractors. In effect, according to AB 5, a worker is classified as an employee if a worker’s activity is controlled by a company, if they are doing work that is central to the company’s business, or the worker has an independent business in that industry. Clearly, Uber and Lyft drivers are doing work central to their companies’ businesses, and therefore would no longer be independent contractors if AB 5 passes.

Why Bosses Love Misclassification

The results of this arrangement are increased profits and flexibility for the companies, and poverty wages, terrible conditions, and debt for the drivers. Companies love misclassifying employees as independent contractors because it displaces the major risks of the enterprise onto the drivers while maintaining all of the benefits of being, in reality, dictatorial bosses.

Since drivers are not covered by minimum wage laws and are paid per ride instead of per hour, all the time that drivers might spend not driving a client — idling waiting for a new job, stuck in traffic on the way to pick someone up, time spent dealing with a traffic ticket or accident — are free for the company. But because the driver is missing out on rides during those times, they are essentially wasting time and losing money.

Since drivers are responsible for their own cars, companies are relieved of the enormous costs of maintenance, repairs, and insurance that come with driving a car all day long. At the end of the day, along with taxes, these costs alone can cut what might seem like a decent living to an effective $3 per hour rate over the long run. Ending misclassification would mean that drivers’ average hourly pay would at least meet minimum wage laws, $12 per hour in California, while being eligible for overtime benefits.

Many drivers also take out loans to get the cars for the job, sometimes through car-loan schemes from Uber and Lyft. This means that drivers who were enticed by the companies’ advertisements of high incomes and flexible hours are, once they realize how little money they actually make, stuck with the debt incurred by the car.

Finally, Uber and Lyft avoid a major responsibility of traditional employment: health and safety regulations, and worst of all, unionization. Since the drivers are not legally employees, they can’t unionize — collective bargaining of independent contractors is treated by labor law as cartel-like price-fixing. And independent contractors aren’t protected by occupational health and safety codes (OSHA).

The company reaps the benefits of the drivers’ “independence” — displacing risk and capital and maintenance costs onto the drivers — while retaining all the benefits of real employment: setting rates, controlling the workforce through discipline and incentives, and keeping as much of the profits as they want. In fact, this is the whole business model of the “disruptive” gig economy in the first place: use an app that allows companies to retain control over prices and wages while skirting labor law and market risks. And this misclassification scheme is not new to Uber and Lyft. Gig economy companies like Postmates and DoorDash and other “traditional” companies like port trucking, FedEx, do the same.

Ballot Measure Bullies

The California legislative session ends on September 13, and Governor Newsom and leaders of the Democratic Party supermajority in the state legislature seem willing to pass AB 5. Nevertheless, industry-friendly Democrats are opposing the legislation.

Most notably, former Senator Barbara Boxer revealed this week that she is being paid by Lyft to help them fight AB 5. Democratic socialist congresswoman Alexandria Ocasio-Cortez rightly called Boxer’s turn to lucrative corporate lobbying, a commonplace practice for politicians of both parties, an “abuse of power [and] a stain on public service.”

Surprisingly, Kamala Harris has joined Elizabeth Warren and Bernie Sanders in publicly backing AB 5, despite Harris’s close relationship with her brother-in-law Tony West, Uber’s chief legal officer and company spokesman against AB 5. The most likely explanation for this is that working-class politics are rising in this country, rather than Harris and other candidates looking for support in the California Democratic primary here next spring having a change of heart.

Uber, Lyft, and other companies are fighting tooth and nail to stop AB 5, but they are also preparing a backup plan in the event it passes: they’ve already gathered as much as $90 million to put a statewide measure on the ballot in 2020 that would effectively invalidate the regulation. And the reality is, they might succeed.

In California politics, major corporations and billionaires have been able to use ballot measures to override the legislature by spending hundreds of millions on campaign operations and advertising for direct ballot measures or referenda. The power of money in ballot measure fights was evident in last year’s Proposition 10 fight: the measure supported by unions, tenants’ groups, and the Democratic Socialists of America would have expanded rent control, something that a majority of Californians support. But the real estate industry spent over $75 million on misleading ads and scare tactics that convinced over 60 perccent of voters to reject the measure.

And even when corporate-backed measures never actually make it to the ballot, companies’ capacity to launch such campaigns has been enough to bully the legislature into submission. For example, in 2018 soda companies spent millions to launch a ballot measure that, among other restrictions, banned health-oriented taxes on soda in the state — the threat of an even harsher law passing through a statewide referendum pressured elected legislators to pass their own statewide ban, AB 1838.

Thanks to California’s reliance on statewide referendums, the capacity of tech companies, landlords, Big Pharma, the oil industry, and eccentric billionaires to buy politicians’ loyalty through nearly unlimited campaign and PAC contributions is supplemented by their power to effectively buy statewide ballot measures.

How Can We Beat Them?

Legislators in Sacramento have voiced support for AB 5, but the companies are lobbying hard for a compromise or some watered-down version.

If AB 5 does pass and companies put up a ballot measure to undo it, workers across the state will have to fight back, in the workplace and at the ballot box. Uber and Lyft drivers have already organized multiple strikes, protests, and boycotts, and rideshare users, politicians, and progressive organizations should support these efforts going forward.

Since misclassification is part of a broader attack on workers’ rights, unions should continue leading the charge for AB 5 while doing what they can to support organizing efforts of gig economy workers.

And workers of all kinds should be fighting to elect Bernie Sanders in 2020 since his Workplace Democracy Plan would not only guarantee the rights of AB 5 across all fifty states, but it would expand workers’ rights and help them organize strong unions while curbing the ability of companies to bust unions and abuse their employees. In addition to protecting gig workers, Sanders’s proposal would establish powerful sector-wide bargaining for unions, expand labor protections to domestic and agricultural workers (who are still excluded from the 1935 National Labor Relations Act as part of a racist deal made by then-President Roosevelt with southern “Dixiecrats”), eliminate “right to work” laws, and make it easier for workers to form unions at the workplace. Alongside a reinvigorated labor movement, Sanders’s plan, the most ambitious program for workers’ rights ever proposed by a major presidential candidate, would dramatically increase the power of workers over their bosses.

So far, no major union in California has backed Sanders, but a group called Labor for Bernie, a grassroots effort led by rank-and-file union members who support Sanders, is organizing within the labor movement to pressure unions to endorse the most worker-friendly major presidential candidate in US history.

California has a unique opportunity to advance Sanders and his agenda, since, in addition to being by far the largest state in the union, our primary was moved up to March 3, 2020 (“Super Tuesday”). If Sanders does well in California, his candidacy and the movement he represents will be well on the way to the Democratic Party’s nomination. Since Sanders is already beating Trump in every national poll, he is not only the most worker-friendly candidate in the election, but the best chance we have of getting rid of Trump.

Uber and Lyft know how much money they would lose thanks to AB 5 expanding rights to their drivers — rights all workers deserve. Uber even admitted this in a SEC filing, saying that correctly classifying drivers as employees would cost Uber “significant additional expenses for compensating Drivers, potentially including expenses associated with the application of wage and hour laws (including minimum wage, overtime, and meal and rest period requirements), employee benefits, social security contributions, taxes, and penalties.”

Most Californians would agree that workers shouldn’t be forced to drive long hours, get paid poverty wages, be forced to pick up the primary costs of their employers’ businesses, while getting almost no protections from state or federal labor law. But Silicon Valley sultans are able to buy, cajole, and bully our government into depriving those rights from all sorts of workers. This is a key reason that Silicon Valley is so profitable in the first place.

The contest has national implications. If Uber and Lyft win the fight over AB 5, it will inspire similar and more aggressive attacks on all workers’ rights across the country. But with the reemergence of labor militancy since 2018 and a democratic socialist candidate for president helping organize the workers’ fightback, there’s a chance for gig workers to help lead the charge in building a society that puts workers’ health and wellbeing above billionaires’ profits.

The Best Movie Ever Made About the Truth Behind the Iraq War Is "Official Secrets"

By Jon Schwarz, The Intercept

31 August 19

 

fficial Secrets,” which opened Friday in New York and Los Angeles, is the best movie ever made about how the Iraq War happened. It’s startlingly accurate, and because of that, it’s equally inspiring, demoralizing, hopeful, and enraging. Please go see it.

It’s been forgotten now, but the Iraq War and its abominable consequences — the hundreds of thousands of deaths, the rise of the Islamic State group, the nightmare oozing into Syria, arguably the presidency of Donald Trump — almost didn’t happen. In the weeks before the U.S.-led invasion on March 19, 2003, the American and British case for war was collapsing. It looked like a badly made jalopy, its engine smoking and various parts falling off as it trundled erratically down the road.

For this brief moment, the George W. Bush administration appeared to have overreached. It would be extremely tough for the U.S. to invade without the U.K., its faithful Mini-Me, at its side. But in the U.K., the idea of war without approval from the United Nations Security Council was deeply unpopular. Moreover, we now know that Peter Goldsmith, the British attorney general, had told Prime Minister Tony Blair that an Iraq resolution passed by the Security Council in November 2002 “does not authorise the use of military force without a further determination by the Security Council.” (The top lawyer at the Foreign Office, the British equivalent of the U.S. State Department, put it even more strongly: “To use force without Security Council authority would amount to the crime of aggression.”) So Blair was desperate to get a thumbs-up from the U.N. Yet to everyone’s surprise, the 15-country Security Council remained recalcitrant.

On March 1, the U.K. Observer threw a grenade into this extraordinarily fraught situation: a leaked January 31 email from a National Security Agency manager. The NSA manager was demanding a full court espionage press on the members of the Security Council — “minus US and GBR of course,” the manager jocularly said — as well as non-Security Council countries who might be producing useful chatter.

What this demonstrated was that Bush and Blair, who had both said they wanted the Security Council to hold an up or down vote on a resolution giving a legal stamp of approval for war, were bluffing. They knew they were losing. It showed that while they claimed they had to invade Iraq because they cared so much about upholding the effectiveness of the U.N., they were happy to pressure fellow U.N. members, up to and including the collection of blackmail material. It proved the NSA plan was unusual enough that, somewhere in the labyrinthine intelligence world, someone was upset enough that he or she was willing to risk going to prison for a long time.

That person was Katharine Gun.

Played craftily in “Official Secrets” by Keira Knightley, Gun was a translator at the General Communications Headquarters, the British equivalent of the NSA. On one level, “Official Secrets” is a straightforward, suspenseful drama about her. You learn how she got the email, why she leaked it, how she did it, why she soon confessed, the horrendous consequences she faced, and the unique legal strategy that forced the British government to drop all charges against her. At the time, Daniel Ellsberg said her actions were “more timely and potentially more important than the Pentagon Papers … truth-telling like this can stop a war.”

On a subtler level, the film asks this question: Why didn’t the leak make a true difference? Yes, it contributed to opposition to the U.S. and U.K. on the Security Council, which never voted on another Iraq resolution, because Bush and Blair knew they would lose. Yet Blair was able to shrug this off and obtain a vote by the British Parliament several weeks later endorsing his war.

There is one main answer to this question, both in “Official Secrets” and reality: the U.S. corporate media. “Official Secrets” helps illustrate the ideological malfeasance by the American press, which eagerly jumped on this grenade to save its foxhole buddies in the Bush administration.

It’s easy to imagine a different history than the one we’ve lived. British politicians, like American ones, are loath to criticize their intelligence agencies. But serious follow-up on the Observer story by the elite U.S. media would have generated attention from members of the U.S. Congress. This in turn would have opened up space for British members of Parliament opposed to an invasion to ask what on earth was going on. The rationale for war was disintegrating so quickly that even some modest delay could easily have become indefinite postponement. Bush and Blair both knew this, and it’s why they pushed ahead so relentlessly.

But in this world, the New York Times published literally nothing about the NSA leak between the date of its publication in the U.K. and the start of the war almost three weeks later. The Washington Post placed a single 500-word article on page A17. Its headline: “Spying Report No Shock to U.N.” The Los Angeles Times similarly ran one piece before the war, the headline of which explained, “Forgery or no, some say it’s nothing to get worked up about.” This article gave space to the former counsel of the CIA to suggest that the email was not real.

This was the most fruitful line of attack on the Observer’s story. As “Official Secrets” shows, American television was initially quite interested in putting one of the Observer reporters on air. These invitations quickly evaporated as the Drudge Report splashed claims that the email was obviously fake. Why? Because it used British spellings of words, such as “favourable,” and hence couldn’t have been written by an American.

In reality, the original leak to the Observer used American spellings, but before publication the paper’s support staff had accidentally changed them to British versions without the reporters noticing. And as usual when faced with an attack from the right-wing, television networks in the U.S. cowered in abject terror. By the time the spelling minutiae was straightened out, they’d sprinted a thousand miles away from the Observer’s scoop and had zero interest in revisiting it.

The little attention the story got was largely thanks to the journalist and activist Norman Solomon, and the organization he founded, the Institute for Public Accuracy, or IPA. Solomon had traveled to Baghdad just months before and co-written the book “Target Iraq: What the News Media Didn’t Tell You,” which came out in late January 2003.

Today, Solomon remembers that “I felt instant kinship — and, actually, what I’d describe as love — for whoever had taken the enormous risk of revealing the NSA memo. Of course, at the time I was clueless about who’d done it.” He soon penned a syndicated column titled “American Media Dodging U.N. Surveillance Story.”

Why hadn’t the paper of record covered it, Solomon asked Alison Smale, then a deputy foreign editor at the New York Times. “It’s not that we haven’t been interested,” Smale told him. The problem was that “we could get no confirmation or comment” about the NSA email from U.S. officials. But “we are still definitely looking into it,” said Smale. “It’s not that we’re not.”

The Times never mentioned Gun until January 2004, 10 months later. Even then, it didn’t appear in the news section. Instead, thanks to urging from IPA, Times columnist Bob Herbert looked into the story, and, perplexed that the news editors had passed, took it on himself.

Now, at this point you may want to collapse from despair. But don’t. Because here’s the unbelievable rest of the story — something so complex and improbable that it doesn’t appear in “Official Secrets” at all.

Why did Gun decide she had to leak the NSA email? Only recently has she revealed some of her key motivation.

“I was already very suspicious about the arguments for war,” she says via email. So she went to a bookstore and headed to the politics section and looked for something about Iraq. She bought two books and read them cover to cover that weekend. Together they “basically convinced me that there was no real evidence for this war.”

One of these books was “War Plan Iraq: Ten Reasons Against War on Iraq” by Milan Rai. The second was “Target Iraq,” the book co-authored by Solomon.

“Target Iraq” was published by Context Books, a tiny company that went bankrupt soon afterwards. It arrived in stores just weeks before Gun found it. Within days after she read it, the January 31 NSA email appeared in her inbox, and she quickly decided what she had to do.

“I was stunned to hear Katharine say that the ‘Target Iraq’ book had influenced her decision to reveal the NSA memo,” Solomon now says. “I didn’t know how to quite fathom [it].”

What does all this mean?

For journalists who care about journalism, it means that, while you may often feel that you’re shouting pointlessly into the wind, you can never predict who your work will reach and how it will affect them. The people inside giant, powerful institutions are not all supervillains in impermeable bubbles. Most are regular human beings who live in the same world as everyone else and, like everyone else, are struggling to do the right thing as they see it. Take seriously the chance that you are communicating with someone who might take action you’d never expect.

For nonjournalists and journalists alike, the lesson is also this: Be not downhearted. Both Solomon and Gun remain deeply distressed that they did everything they could imagine doing to stop the Iraq War, and it happened anyway. “I feel gratified that a book I co-wrote had such ripple effects,” says Solomon. “At the same time, I truly feel it hardly matters what I feel.”

But I think that Gun and Solomon’s sense of failure is the wrong way of looking at what they did and what others can do. The people who tried to stop the Vietnam War only succeeded after millions had died, and many of those writers and activists saw themselves as failures too. But in the 1980s, when factions of the Reagan administration wanted to conduct full-scale invasions in Latin America, they couldn’t get it off the ground because of the base of organization and knowledge created years earlier. The bitter fact that the U.S. settled for its second choice — unleashing death squads that slaughtered tens of thousands across the region — doesn’t mean that Vietnam-style carpet bombing wouldn’t have been much worse.

Likewise, Gun, Solomon and the millions of people who fought the onrushing Iraq War failed, in some sense. But anyone who was paying attention then knew that Iraq was intended as just the first step in a U.S. conquest of the entire Middle East. They didn’t prevent the Iraq War. But they, at least so far, helped prevent the Iran War.

So check out “Official Secrets” as soon as it appears in a theater near you. You will rarely see a better portrait of what it means for someone to try to make a true moral choice, even when unsure, even while terrified, even when she has no idea what will happen next.