Uber abusing power with ads in drivers’ apps promoting Prop. 22, lawsuit says.
Uber is abusing its economic power over California drivers with “a constant barrage” of inapp ads urging them to vote for Proposition 22, according to a lawsuit filed Thursday.
The case, filed in San Francisco Superior Court by some drivers and nonprofits, said the aggressive ads violate California laws that prohibit employers from “controlling or directing” employees over political activities, including their voting rights. The lawsuit, which seeks classaction status, asks for up to $ 260 million in damages and an injunction to halt the practice.
Prop. 22, which voters will decide in less than two weeks, would keep drivers and couriers for Uber, Lyft, DoorDash, Instacart and Postmates as independent contractors, entitled to some earnings guarantees and benefits. It would essentially exempt them from AB5, California’s new gigwork law, which makes it much harder for companies to claim that workers are not employees. The gig companies say they and their workers depend on the flexibility of the freelance model.
Uber is battling reclassification in the courts, where California and three cities have sued it and Lyft. A San Francisco Superior Court judge
granted a preliminary injunction in that case, which would have forced immediate reclassification of drivers as employees. That decision was stayed pending an appeals court ruling. On Thursday, the appeals court upheld the injunction, giving Uber and Lyft 91 days to turn drivers into employees. If Prop. 22 passes, however, the companies are likely to argue that the ruling should be reconsidered.
Employment would add hundreds of millions of dollars a year to the companies’ costs. They have poured almost $ 200 million into the Yes on 22 campaign, saturating TV channels with ads, filling up mailboxes with glossy brochures and blasting out text messages. Uber has also used some precious real estate that it alone controls — the apps that people use to summon rides or go to work as a driver.
That’s the basis for the case, which says that the driver ads show Uber trying to dictate to “a captive audience whose members are economically dependent on Uber.”
The ads include dire warnings about what could happen if Prop. 22 does not pass, which the lawsuit said include “factually unfounded assertions that its California drivers will lose their jobs.”
“Uber is using extremely coercive tactics to try to influence its workers to line up in support of Uber’s preferred political position,” said David Lowe, a San Francisco attorney representing the plaintiffs as cocounsel with Legal Aid at Work.
Uber scoffed at the claims. “This is an absurd lawsuit, without merit, filed solely for press attention and without regard for the facts,” Uber said in a statement, adding that most drivers support Prop. 22.
San Francisco resident Jorge Torres, 29, an Uber driver for two years, was not aware of the lawsuit, but said he finds the inapp Prop. 22 ads annoying.
“It feels as if every time we go online we are compelled to ( click) ‘ Vote Yes’ in order to be left alone,” he said. “It’s like a salesman with a service you don’t want; he stays constant until you buy something.”
Torres said he is likely to vote against Prop. 22 because he doesn’t feel that he’s truly an entrepreneur since Uber imposes so many conditions on drivers.
“It’s almost as if they control how you work through the app,” he said. “It doesn’t make me feel as independent as they say I am.”
Torres stopped driving in March because of the pandemic and resumed early last month so he can support his mother in Mexico. He often works close to 12 hours a day, the maximum allowed by the app.
His app records from last week showed that he was online for 79 hours and 19 minutes, or about 11.4 hours a day, seven days a week. With tips, he earned about $ 2,500 before subtracting for expenses. The amount was higher because he spent about $ 150 on Uber’s new Drive Pass program — one of the ways it tries to make drivers more independent — which lets him pay a flat rate for trip requests rather than paying Uber a commission.
The advertising case’s central thesis is that it’s illegal for employers to coerce employees. There is no such statute about independent contractors, which is how Uber classifies its workers. But Lowe said that shouldn’t be an obstacle since the judge in the California vs. Uber and Lyft case rejected their contention that AB5 does not apply to them.
Almost all Uber drivers agree to mandatory arbitration when they sign up to work, which ordinarily would preclude classaction cases. However, this case is being filed under California’s Private Attorneys General Act, or PAGA, which is not subject to arbitration requirements, Lowe said.
Uber isn’t the only gig company trying new tactics to promote Prop. 22.
DoorDash offers free mealdelivery bags that say “Yes on 22” to restaurants that request them. It said more than 600 restaurants have requested more than 4 million bags, and it’s working to meet all the demand.
Instacart briefly asked some of its Berkeley grocery shoppers to put pro22 stickers and flyers into customers’ bags before delivering them. The program was voluntary, took place over one weekend, and there are no plans to continue it, Instacart said.
Lowe said he’s looking into those instances, as well as into Lyft’s use of inapp ads. Lyft did not respond to requests for comment.