California forces rideshare drivers into a union

A reported 50,000 rideshare drivers for Lyft and Uber in California have recently signed cards to join the existing California Gig Workers Union (CGWU). The union’s growth isn’t the result of strong grassroots support but of state lawmakers forcing it on the drivers.

Organizing gig workers has been a major project for unions over the past two decades because those workers have grown as a part of the economy. Gig worker is just another term for an independent contractor or freelancer—that is, anyone in business for themselves who chooses when to work. That’s the case with rideshare drivers for Uber and Lyft, who determine when and for how long they drive.

It is not impossible to organize freelancers, but historically it has been a lot harder to do. These are not traditional employees who all work at the same location, where union organizers can potentially find a large audience. Gig workers are almost never at the same place at the same time, making it harder for organizers to round up support. They also tend to be independent people who’d rather not be subject to others’ rules.

California Governor Gavin Newsom, a staunch union ally, helped union organizers by signing Assembly Bill 1340 late last year. The law requires only 10 percent of drivers to sign documents backing a union before a workplace election could be ordered to settle the issue. The National Labor Relations Act (NLRA), the main federal law covering union rights, requires a 30 percent showing of interest before an election can be held.

This is likely unconstitutional. Rideshare drivers are clearly private sector (i.e., non-government) workers. Most of those workers are covered by the NLRA, except for certain transportation industry workers who are covered by the Railway Labor Act, a separate federal law. States cannot override federal laws. States can regulate their own public sector workers. AB 1340 is administered by the California Public Employment Relations Board (PERB), whose website states that its jurisdiction is “limited to certain public sector employees” and that private sector workers are covered by the NLRA.

AB 1340 covers workers for transportation network companies, which California defines as a “corporation, limited liability company, partnership, sole proprietor, or any other entity, operating in California.” That is broad enough to include private sector workers. AB 1340 nevertheless asserts that the state can cover those workers too.

The definition of a rideshare driver in AB 1340 is also broad: anyone who completed at least 20 rides for a company within the preceding six months. Even people who only did it a few hours a month could be considered employees.

AB 1340 also requires that any eventual union have a sectoral bargaining agreement, meaning that one union would cover all companies in the industry. Thus, the state requires just 10 percent of all rideshare drivers, regardless of who they drive for, to ask for a union before ordering a vote covering the entire industry.

The CGWU, which is affiliated with the powerful Service Employees International Union (SEIU), was officially certified as the representative for both Uber and Lyft drivers in September. What is unclear is how many of the Golden State’s drivers actually wanted union representation. Newsom’s office claimed last year that the state had 800,000 rideshare drivers, while the CGWU told the Wall Street Journal this month that there were an “estimated 300,000 to 350,000 rideshare drivers in the state.”

The union claimed earlier this year that tens of thousands had signed cards requesting a union election. Tellingly, the CGWU didn’t say how many drivers had actually voted for it in the eventual election. The PERB, the state agency that certified the election, couldn’t provide a precise figure either. It said only that at least 30 percent of active drivers authorized the CGWU to act as their bargaining representative. So, possibly not even a third of all drivers.

That certification could still be legal though. Union elections are based on the majority of votes cast, not winning a majority of all eligible voters. Even if only a tiny sliver of California rideshare drivers voted for the union, they just needed to exceed the number of people who voted against a union for the CGWU to officially win.

As the official representative of the drivers, the CGWU can now claim a portion of all drivers’ earnings as union dues. Workers are at least allowed to opt out of paying the dues, but they have to do so in writing and “in accordance with the terms of the signed authorization.” So read the fine print.

Union leaders are definitely better off thanks to AB 1340. Whether Golden State rideshare drivers are better off is a whole different question.