Proposition 22, a hotly contested ballot measure, would create a new profession under California law consisting of app-based rideshare and delivery drivers with its own set of labor rules. Much of the campaign rhetoric has focused on competing claims about what most drivers want. Supporters and opponents also have argued over the value of protections the measure would provide to customers of these services.
This column focuses on the new independent contractor framework the measure would create and on the compensation and benefits app-based drivers would receive.
Under AB 2257, the successor to AB 5, a worker is presumed to be an employee unless the hiring entity can show the worker is: (A) relatively free of the hiring entity’s control; (B) performing work outside the usual course of the hiring entity’s business, and (C) customarily and regularly doing work, in an established trade, occupation, or business, of the same kind being performed for the hiring entity.
AB 2257 excludes from the ABC test certain professional and business relationships, generally subjecting those relationships to the more flexible Borello test which preceded the California Supreme Court’s 2018 Dynamex ruling and enactment of AB 5 the following year. The Borello test focuses mainly on the degree of control the hiring entity has over how the work is performed. It also uses such additional factors as whether the worker uses his own tools in the work to determine whether the worker is a bona fide independent contractor.
What Prop. 22 would do
Prop. 22 would not insert app-based drivers as an additional exception to the ABC test in AB 2257. Instead, “[n]otwithstanding any other provision of law,” the proposal would classify any such driver as an independent contractor “with respect to his or her relationship with a network company” if the network