Uber drivers sue app over ‘constant barrage’ pushing California anti-employment initiative

The Uber drivers filed suit in San Francisco Superior Court a little less than two weeks before the election, alleging Uber has violated workers’ rights with the “constant barrage” of pro-Prop 22 messages Uber drivers face on the job. The plaintiffs include drivers who are active in labor organizing and the campaign against Prop 22.

The suit alleges Uber has engaged in illegal political coercion by issuing repeated warnings to drivers in the app about the consequences if Prop 22 fails. One screenshot posted to social media shows drivers are prompted with a message reading “Prop 22 is progress,” touting the health-care and earnings changes it would usher in. Drivers have to click through the prompt, answering either “Yes On Prop 22” or “OK” to proceed.

Uber spokesman Matthew Wing said Uber does not use that specific language anymore, and drivers were shown the message when they were going offline. He said drivers today are occasionally shown a screen reading “Drivers deserve better” and citing survey data about support for the measure among their ranks, followed by the message “Vote yes on Prop 22.”

Uber also questioned the motives of the suit Thursday, disputing arguments on issues such as driver surveys.

“This is an absurd lawsuit, without merit, filed solely for press attention and without regard for the facts,” Uber spokesman Noah Edwardsen said. “It can’t distract from the truth: that the vast majority of drivers support Prop 22 and have for months because they know it will improve their lives and protect the way they prefer to work.”

According to the lawsuit, Uber informed workers that 72 percent of drivers and delivery people said they plan to vote yes on Prop 22. The figure, the lawsuit alleges, “is false and misleading because it suggest[s] that 72% is an accurate, unbiased figure, when it fact it is the consequence of the many pressures to conform to Uber’s preferred position.” The lawsuit also alleges Uber could monitor the survey answers and use them to favor drivers who supported Prop 22.

Uber peppered drivers with misleading facts about Prop 22, the lawsuit also alleges. For instance, it told drivers that if Prop 22 passes, drivers will earn 120 percent of minimum wage. But that figure hinges on “engaged time,” meaning time giving rides or en route, rather than time logged into a specific app when waiting for a fare. The current law would mean higher wages for drivers, the lawsuit argues, because it requires Uber to pay drivers even when they’re waiting for a ride.

“Uber’s threats and constant barrage of Prop 22 propaganda on an app the drivers must use to do their work have one purpose: to coerce the drivers to support Uber’s political battle to strip them of workplace protections,” David Lowe, a partner with the firm representing the workers, Rudy, Exelrod, Zieff & Lowe LLP, said in a statement.

Earlier this month, Lowe contributed $5,000 to a committee formed by labor organizations to oppose Prop 22.

“I have the freedom to support or oppose prop 22, and that is the same freedom we are saying the employees should have,” Lowe said in an email. “The case isn’t about whether or not Prop 22 should pass; the issue is that Uber is illegally coercing its employees to support Uber’s position on that issue.”

The suit seeks an injunction that would prevent Uber from continuing to show drivers the Prop 22 messages. With so little time before the election and many mail-in ballots already cast, Lowe said in an interview his firm would attempt to find ways to speed up the process and gain the injunction as quickly as possible.

Uber argues that drivers prize the flexibility that comes with being independent and that an employment requirement would force it to adopt established hours, potentially increasing wait times and fares. It has said it may also force the company to exit some markets and result in the company having to let go of tens of thousands of gig workers. It has pointed to two surveys, one unscientific and another paid for by the company — with more rigid methodology — to support its argument that drivers favor being independent contractors.

The law under contention is California’s Assembly Bill 5, passed last year and aimed at establishing certain classes of gig workers as employees. Uber, Lyft, DoorDash and other gig companies fought the measure, as well as its implementation this year.

In May, California Attorney General Xavier Becerra, along with the city attorneys of San Francisco, San Diego and Los Angeles, sued Uber and Lyft, alleging the companies were misclassifying hundreds of thousands of workers after the law took effect in January.

By August, a San Francisco judge ruled that Uber and Lyft had to make their drivers full employees, but the ruling was stayed while the companies appealed. The case is now before a California Court of Appeal, and a ruling may not come until after the election.

California has some of the strongest labor laws in the country, and employers are prohibited from influencing employees’ political activities.

“Despite California’s longstanding prohibitions against employer interference with the political rights and freedoms of their employees, Uber has taken advantage of its raw economic power and its exclusive control over communications through its driver-scheduling app by wrongfully pressuring its drivers to actively support Proposition 22,” the lawsuit alleges.

The lawsuit was filed under the California Private Attorneys General Act, a law that allows employees to sue on behalf of the state and collect a portion of any fines that result from the lawsuit. If Uber were found to have violated California labor law, it could be forced to pay up to $200 per Uber driver for every pay period since Uber’s Prop 22 campaign began, for a maximum penalty of over $260 million, Lowe said.

The San-Francisco-based nonprofit Legal Aid at Work is also representing the drivers.

The lawsuit could have implications beyond the battle over Prop 22. As large companies increasingly use technology, including customized mobile apps installed on company-owned devices, their power to orchestrate political influence campaigns will become far greater in the near future, Lowe said.

“Just because corporations have new tools that haven’t been addressed before in this context doesn’t mean they can use those tools to manipulate employees,” he said.