The reality of California’s Proposition 22, the “gig” economy, and app based workers rights.

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Currently in California, a proposition is set to be voted on this November 3rd which could change the course of labor rights through out the United States.

*New Law proposed in California seeks to eliminate Employment AND Independent Contracting rights of GIG workers.

*GIG/APP companies UBER, LYFT and DOORDASH raise over $180 MILLION dollars in lobbying funds to promote Proposition 22.

*If passed, Proposition 22 would create a new Indentured labor class that could spread to other US states.

Proposition 22 was introduced as a measure to change the classification of GIG economy workers.

There are still many arguments as to what a GIG economy worker is and what defines them as such but TWO aspects of the title are true in all it’s forms that exist today:

1- The service or product provided is arranged with the customer exclusively through a phone app or online order..

2- The person providing the product or service to the customer and the customer purchasing the product or service maintains an indemnity contract as well as a Limitation of Liability agreement with the business actually providing the product for sale or service through a phone app or online order that is completed to the customer by a person or group acting as a third party provider.

*Typically an Indemnity contract alone, includes terms that would fully cover any accident, negligence or lack of oversight on the part of the business providing the product or service.

This is not the case with app-based companies such as Uber, Lyft, Doordash, Instacart or Postmates where the agreements on Limitation of liability extend the right of the company providing the product or service to dump incidental costs, insurance and damages on the Customer and driver for virtually any reason, even it the fault is with the company itself.

This is where GIG economy companies have added to their method of doing business a form of Indenture that forces the worker/provider and even the customer in a agreements that sacrifice safety and freedom from false incrimination.

Indentured labor is a method of keeping employees or servants in your employ without regard to their rights, fair pay or responsible employer/worker relations.

For many centuries it was used by monarchies and even early Industrial American companies as a means of using cheap labor or maintaining a system of Slavery justified through contracted debt and servitude.

Indentured labor always relies on an agreement or contract between the employer and the worker that grants unreasonable rights to the employer.

These types of agreements that include a limitation of liability WITH and indemnity contract agreement can be found in another form of third party provider based business known as Multi Level marketing companies (AKA, Pyramid Scams).

The LuLaRoe Pyramid Scam, which was recently fined $95,000 for deceptive marketing, uses Limitation of Liability and Indemnity terms in it’s contract agreement with Customers and “partners” that are virtually Identical to those use by GIG- economy companies.

LuLaRoe Agreement as of 10-11-2020

DISCLAIMER OF WARRANTIES
We make no representation or warranties about this Site, the suitability of the information contained on or received through use of this Site, or any service or products received through this Site. All information and use of this Site are provided “as is” without warranty of any kind. We hereby disclaim all warranties without regards to this Site, the information contained or received through use of this Site, and any services or products received through this Site, including all express, statutory, and implied warranties of merchantability, fitness for a particular purpose, and/or title and non-infringement. We do not warrant that the contents or any information received through this Site are accurate, reliable or correct; that this Site will be available at any particular time or location; or that any defects or errors will be corrected. Your use of this Site is solely at your risk. You agree that you have relied on no warranties, representations or statements other than in these Terms.
LIMITATION OF LIABILITY
Under no circumstances shall we be liable for any direct, indirect, punitive, incidental, special, or consequential damages that result from the use or inability to use, this Site. This limitation applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if we have been advised of the possibility of such damage.
INDEMNIFICATION
You agree to indemnify, defend, and hold us and our affiliated companies, and our and their employees, contractors, officers, agents and directors, harmless from all damages, liabilities, claims, and expenses, including attorney’s fees and costs (we will choose our own legal counsel), that arise from your use of this Site, or any services, information or products from this Site, or any violation of these Terms. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you shall cooperate with us in asserting any available defenses.

-Source- https://www.lularoe.com/terms-of-service – 10-11-2020
UBER contract agreement as of 10-11-2020

6. Disclaimers; Limitation of Liability; Indemnity.
DISCLAIMER.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” UBER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, UBER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. UBER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY.
UBER SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF UBER, EVEN IF UBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
UBER SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF UBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UBER SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND UBER’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES REQUESTED THROUGH SOME REQUEST PRODUCTS MAY OFFER RIDESHARING OR PEER-TO-PEER TRANSPORTATION SERVICES AND MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.
THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR LOGISTICS SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT UBER HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR LOGISTICS SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, UBER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON UBER’S CHOICE OF LAW PROVISION SET FORTH BELOW.
Indemnity.
You agree to indemnify and hold Uber and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) Uber’s use of your User Content; or (iv) your violation of the rights of any third party, including Third Party Providers.

Source- https://www.uber.com/legal/en/document/?country=united-states&lang=en&name=general-terms-of-use – 1–11-2020

These same terms exist in the customer and partner/worker agreements for:

DoorDash

Instacart

Postmates

Task Rabbit

Lyft

AirBnB

From 2013 to 2018 GIG economy companies lobbied US states to pass laws which would openly allow this manner of doing business to be legal.

A new Law establishing a new means of classifying workers is only the next step in this same deceptive and fraudulent manner of doing business.

An Independent Contractor has certain rights that GIG economy workers are not allowed but have every right to under the current law.

The ten most basic rights an Independent contractor has:

  1. Right to a Contract – Currently GIG workers mustsubmit to a contract given to them rather than making their own.
  2. Right to Control – Currently GIG workers must submit to fraudulent terms that can be changed at the whim of the company they work for without any reasonable or fair application for the changes.
  3. Right to Make Decisions – Currently GIG workers have no choice in the changes to their contracting or demands made by the apps they provide services through.
  4. Right to Work When You Want – Currently this is NOT available to GIG workers as they can not avoid SURGE schemes which only happen at certain times of day and ONLY in certain geo-specific areas as designated by the APP company.
  5. Right to Work Where You Want – Again this falls under the demand of the GIG/APP company which creates a selective market the worker can not avoid when trying to provide services.
  6. Right to Advertise – GIG workers Can not advertise outside of the promotions, offers and adds produced by the GIG/APP company they work for. They can attempt to provide signs, posters or cards to customers but they must always submit to the direction of jobs assigned by the GIG/APP company exclusively.
  7. Right to Receive Payment – GIG workers must submit only to the payment terms of the GIG/APP company. They can not exclusively take cash or use a credit card provider of their own. This eliminates their fair right to receive payments any way they see fit.
  8. Right to Work with Other Contractors – This again is a right GIG workers DO NOT have. They can not provide the same services for another business or provider unless of course it is another GIG company on yet another fraudulent indentured contract.
  9. Right to Challenge Your Employment Status – This is something that GIG workers are attempting in states like California. However if Proposition 22 passes, they will no longer have the right to argue it or argue for better rights in any future situation with the GIG/APP company.
  10. Right to Manage Your Own Business – This is another right that GIG workers do not have as they have signed these rights over to the GIG/APP company in an indentured and fraudulent agreement..

Not a single term or statute implied by Proposition 22 would grant these rights. Rather it would ensure that GIG economy companies NEVER have to grant them to their workers.

As gig workers, GIG companies, Legislators and Unions argue over the stigmas of the GIG economy, it is important to examine the basic rights of those involved and effects that these businesses have already had on the economy and labor in general.

Uber and Lyft currently maintain IPOs (stocks) that have traded below their opening values for over a year now. Their business models ARE NOT working without the adage of defrauding customers and their own workers.

Promises for safer business practices, better background checks, more driver pay and better working conditions have gone repeatedly unanswered and unresolved by GIG economy companies for over seven years now.

Without a resolution that would, at the very least, grant drivers an actual chance AND CHOICE in the matter of wages, the other issues infesting the operations of GIG economy companies will continue to go unresolved as well.

Voting NO on Proposition 22 is California’s chance to end this method of fraud and corporate welfare before it can do more damage.

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