Tech Won't Save Us - How Race Was Central to Prop 22 w/ Veena Dubal

Episode Date: September 30, 2021

Paris Marx is joined by Veena Dubal to discuss how Proposition 22 and the contract status of gig workers is reminiscent of the United States’ history of racial wage codes, which codified lower wages for Black workers. Veena Dubal is a Professor of Law at UC Hastings. Follow Veena on Twitter at @veenadubal. Go back to episode 10 (May 21, 2020) for Veena’s first appearance on the podcast. 🚨 T-shirts are now available! Tech Won’t Save Us offers a critical perspective on tech, its worldview, and wider society with the goal of inspiring people to demand better tech and a better world. Follow the podcast (@techwontsaveus) and host Paris Marx (@parismarx) on Twitter, and support the show on Patreon. Find out more about Harbinger Media Network at harbingermedianetwork.com.  Also mentioned in this episode:If you’ve ever assigned an episode of the podcast in a college or university course, let me know by Twitter DM, email, or through this form.Read Veena’s essay on The New Racial Wage Code.Booker T. Washington and W.E.B. Du Bois had opposing philosophies for Black social and economic progress.Robert C. Weaver and David Roediger wrote about differential wages.Uber put up a billboard saying, “If you tolerate racism, delete Uber.” Drivers were not happy.Uber and Lyft held up workers’ unemployment claims, and Lyft charged for PPE.After Prop 22, gig companies raised fees despite promising not to, and workers reported earning even less money.In August, Prop 22 was found to be unconstitutional.New York City recently passed new protections for delivery couriers after organizing by Los Deliveristas Unidos.Find out more about Rideshare Drivers United.Support the show

workers who were fighting Proposition 22 kept comparing themselves to agricultural workers and domestic workers. And I was like, huh, this is so interesting. I wonder what the history looked like. Hello and welcome to Tech Won't Save Us. I'm your host, Paris Marks, and this week my guest is Veena Dubal. Veena is a professor of law at UC Hastings whose work looks at the historical context and the legal structures that define the gig economy. She was a vocal opponent of Proposition 22 in California, the ballot measure that was supported by the gig companies that restricted their workers to contractor status and limited their access to the rights, benefits, and protections that virtually any other worker in the economy would have.

Veena has been working on a new article called the New Racial Wage Code that puts the labor model and the legal structure around it of the gig economy in the historical context of the differential racial wage codes that have existed in U.S. history that essentially ensured that black workers and that industries that primarily employed black workers, in particular agriculture and domestic service, were structurally paid less than other industries and workers. She argues that Proposition 22 and, you know, the broader labor model of the gig economy fits into this history because so many of the gig economy workers in the United States in particular are people of color and immigrants, and by denying them employment status and relegating them to a third kind of labor standard, they are effectively being subjected to yet another form of this kind of racial wage code. This is a fascinating connection with history that Bina is drawing here, and I was really happy to have her back on the show to discuss it and its

implications. Before we get to this week's episode, I also want to let you know about a series that I'll be doing over the next three weeks, where I'll be doing two episodes a week looking at the gig economy around the world. I'll be speaking to guests in Canada, Australia, the UK, Europe, Brazil, and one other country that I haven't finalized yet so we can get a bit more of an understanding about what's happening in these different jurisdictions, what challenges gig workers are facing, the organizing that they've been doing, and what the gig economy looks like in these places. I'm really looking forward to exploring this with the different guests that are coming on the show, and I hope that you will enjoy it as well. So stay tuned for that,

and that will be starting next week. I also want to make a request. I've heard from some listeners in the past who are like university and college professors that they have assigned episodes of the podcast for their students to listen to in courses. And so if you have done that before, if you could let me know either by sending me a DM on Twitter, sending me an email, or I have a form in the show notes that you can find a link to. So if you just let me know through any of those methods, that would be much appreciated. I'm just trying to collect that information. Tech Won't Save Us is part of the Harbinger Media Network, a group of left-wing podcasts that are made in Canada. And you can find out more about that by visiting harbingermedianetwork.com. If you like this conversation, make sure to leave a five-star review on Apple Podcasts

and share it on social media or with any friends or colleagues who you think would learn from it. Every episode of Tech Won't Save Us is free for everyone. So if you enjoy the show and you're able to, consider joining new patrons like Billy Butler and Lee from Toronto by going to patreon.com slash techwontsaveus and becoming a supporter. Thanks so much and enjoy this week's conversation. Veena, welcome back to Tech Won't Save Us. I'm so thrilled to be here. I'm really excited to chat with you conversation. Veena, welcome back to Tech Won't Save Us. I'm so thrilled to be here. I'm really excited to chat with you again. You know, obviously in the past,

we talked about AB5 and, you know, the fight for gig workers' rights in California. You have an article that you wrote recently called The New Racial Wage Code that looks at how, you know, Prop 22 and the larger, you know, gig economy labor model is an extension of these kind of differential wage codes that have discriminated against people of color in the United States for a very long time. And so I wanted to dig into that with you today.

And before we get into Prop 22 and the gig economy, I want to start with that historical kind of precedent so we can set that up. So you provide two examples of legislation that illustrate these racial wage codes in US history. The first is the National Industrial Relations Act in 1933. So can you explain a bit about what that law was, how it enabled differential wage rates, and how organizations at the time pushed back against it. Thank you so much for reading this article. One of the things that I've thought is really sort of purposely made invisible in this gig economy fight is the way in which these companies are really replicating old regulatory models of exploitation. So as you say, I highlight this earlier moment in US history when we first

got wage regulations in the US. And it's interesting, I'm less familiar with the Canadian context, but I've heard from colleagues in Canada that the history is actually very, very similar. And so basically what happened in the middle of the New Gilded Age and the height of the Great Depression, you had this sort of unlikely coalition form under the Roosevelt administration willing to pass economic coordination measures, willing to pass regulatory measures to help bring agriculture, industry, and workers out from the depression. And so the National Industrial Relations Act was passed in 1933, and it created the National Recovery Administration. And the National Recovery Administration was supposed to do a lot of different things, including create minimum wage regulations for different industries. And what ended up happening is that industrialists and the folks that historians called Dixiecrats, Southern Democrats who represented the interests

of plantation owners, really lobbied to get racial wage codes passed. So they tried to get laws passed that would maintain the existing boundaries of the racial hierarchy, legalizing lower wages for Black workers, and whole-scale work law exclusions for racialized sectors. And what ended up happening was that there were, you know, really effective advocates in the Black community through the NAACP, the National Urban League, who formed the Joint Committee, who fought against these racial wage codes at the level of the NRA. And so they were never explicitly passed, but they ended up being passed de facto in these sort of facially neutral ways. So what happened essentially was that these industry-wide

minimum wages were set, but in industries that were primarily Black, the wages were set at much lower rates, largely through arguments about how Black workers didn't need as much money. Black families could subsist on much less. And also through arguments that we really hear a lot today about disemployment, basically saying, look, if we put Black workers on the same level as white workers in terms of wages, then racist employers are just going to fire the Black workers and hire white workers, and millions of Black workers are going to lose their jobs. And so surprisingly, this notion of a racial wage code and even the de facto racial wage

codes that were ultimately passed, there ended up being debate in the African American community. You know, sort of the debate that followed the intellectual dialectic between Booker T. Washington and W.E.B. Du Bois decades earlier about how the Booker T. Washington sort of lineage of thought being like, we should accept kind of what we can get, and Black workers are going to lose their jobs if we don't accept the minimum wage regulations as they've been offered to us. And then you had the more W.E.B. Du Bois' lineage of thinking, which is that this would ultimately result in unacceptable racial inequality. And so we had these de facto wage codes that were passed by the National Recovery Administration. On unrelated grounds,

the National Recovery Administration was disbanded and the NERO was found to be unconstitutional. And then just a few months later, the Fair Labor Standards Act passed. And the Fair Labor Standards Act was the first federal law that set a federal minimum wage and overtime protections. And it created, there was a wholesale exclusion of the workforces that were African-American. So domestic workforces, domestic workers, and agricultural workers. And in the legislative history, there's much less discussion there about why African-American workforces were just excluded entirely, but it seemed to be a legacy that was left over from the debates under the National Recovery Administration. And the result is that from 1938 and to some extent until today, although we can

talk more about the details, these workforces that were primarily people of color were completely carved out of these protections and as a result, economically subordinated by law. I try and offer this history, which is sort of, I think in some ways an esoteric history that many people are unaware of when they think of the New Deal, but then that is becoming very, very important today as we see similar kinds of efforts to implement a sub-minimum wage for a racial minority workforce as we see these arguments coming to be. Yeah, I think that's a great description of that part of history, I guess. I would say, personally, when I found the article, when I read the article, you know, I was aware that this kind of thing

happened, but I didn't know the specific history and what it looked like and how that played out. And one of the things that really stood out to me, you know, as I was reading through the two examples that you just outlined there, the, you know, National Industrial Relations Act in 1933 and the Fair Labor Standards Act of 1938 was that, you know, with the first one, there was this kind of hope that this was going to raise the standard of living for all workers. But then those hopes were dashed when they saw that, you know, these kind of differential wage rates were allowed to exist within the legislation, even though, you know, it was more explicit in the Fair Labor Standards Act that came later. But one of the examples that you outlined that really stood out to me was you talked about Robert Weaver, who I believe became the first secretary of housing and urban development, who argued that these differential wage rates were not just a setback for Black workers, but set the entire labor movement back.

So can you talk a little bit about that? Yeah, absolutely. And I want to say one thing before I get into that, which is really that this history, I was sort of compelled to look into it and the level at which I looked into it because workers who were fighting Proposition 22, which we'll talk about in a little bit, kept comparing themselves to agricultural workers and domestic workers and kept saying, look, this is just like domestic workers and agricultural workers. And I was like, huh, this is so interesting. I wonder what the history looked like then. Sort of we think about, you know, this New Deal era as being a very different moment for race in America.

But I was sort of interested in what happened. And I was struck by the similarities of the arguments made by the industrialists then and the industrialists now. And I was also struck by how this was an actual arena cut for some folks amongst African American leadership that this was a racial wage code. So I'm sure we'll get to that in a little bit, but I just wanted to highlight that. So yes, Weaver was this really influential, you know, Harvard-trained African American economist who later became the secretary of HUD. And he was also sort of instrumental in forming this joint committee. And the joint committee was this coalition of civil rights groups, of African American leaders and civil rights groups who took positions during the New Deal to ensure that Black workforces were supported by legislation and not subordinated by it. And so, you know, yes, he says that the ultimate effect of these carve-outs would be to relegate Black Americans to essentially a wage

caste system and put the federal stamp of approval on being in a lower position. But he also, as you point out, says essentially that the essence of collective bargaining, the essence of unionism, is an impersonal and standard wage. And I'll quote him for you. He says, a racial wage differential prevents both the development of unionism and of collective bargaining. It would, therefore, destroy the possibility of a real labor movement in this country. And so he's really speaking to something that I think David Roddiger writes really beautifully about, which is the division of labor, the division of workers along racial lines through these kinds of bifurcated racial wage codes and how you cannot have a real labor movement, or as he says, or you cannot have a strong culture of unionism when there are different castes of workers, because that kind of caste system results in dividing and conquering. And in this particular context, you had, I mean, we could go into the history of black and white labor in the U.S. in some detail, but you, of course, you had Black workers who were used as strike breakers in white workforces. You had really racist unions that were keeping Black workers out of these unions. You know, the working class, even during the Great Depression, was by no means a sort of egalitarian space along race lines. And so what Weaver was really

prescient in articulating was that if you have different rules for different groups of people, it's going to be even harder to have a labor movement, a strong united labor movement. It's such an important point, especially when you think about the issues that we're still dealing with today, right? How employers can naturally take advantage of these kind of different ways of classifying workers, if that is allowed to happen. And so it's incredibly relevant to the discussion that we're having with the gig economy. And so I think at this point, now that we have that historical context, move on to Prop 22, and what the gig companies are doing in terms Lyft in California to overturn AB5, which made gig workers employees under state law and gave them the rights and protections that

came with that. And then Prop 22 instead cemented their contractor status and denied them the same rights as other workers, I guess, just to give a basic overview. So how do you see Prop 22 and the general labor model of the gig companies as being an extension of these previous laws and differential wage codes that we've been discussing? It's so interesting. Race was made a very big part of the campaign to pass Proposition 22. So for your listeners in California, they know this. It was very hard not to notice the $225 million initiative campaign to get Prop 22 passed. It was in your face all the time when you looked at your phone, when you looked at YouTube, when you're on Facebook, when you watch TV, constant mailers. I mean, they reach voters in any way they possibly could reach

them. I mean, even my six-year-old daughter was telling me that she was getting Prop 22 ads when she was watching TV. And so a lot of their ads, interestingly, used in very, very clear terms, not even sort of subliminally, but very, very clearly used race, saying that, you know, racial minority workers, immigrant workers, single Black women, these people needed Prop 22 to pass because they needed this work that the companies were providing, this subminimum wage work. And it was ironic that they were sort of using this benevolent racial discourse, instrumentalizing this benevolent racial discourse to get their law passed, because what I think is very clear is that they were doing something that industrialists had done

less than a century before, just two generations before them, they had, during the National Recovery Administration and during the Fair Labor Standards Act, done exactly the same thing, carve workers out of minimum wage laws, out of basic protections, out of the Social Security Act, out of unemployment insurance, out of the right to collectively organize and bargain, and relegated them to a different status. And Prop 22, as you articulated, did exactly that, but in a really insidious way. So I think the most important and most confusing part of Prop 22 is that the companies kept saying that it provided 120% of the minimum wage to their workers, which sounds really great. Sounds like more than the minimum wage.

But in fact, it only provided that guarantee for the time after a worker is allocated a fare. And so that whole time period when a worker is just waiting for a fare, there is no payment. And so in two ways, this is sort of worse than just being carved out of wage laws entirely, because these workers essentially became peace workers, right? And they have no sense or no idea of how much work there will be allocated, because all of that is based on algorithmic systems, black box systems that they have no control over. And then simultaneously, they're being told that they're going to actually be getting these amazing wages, 120% of the minimum wage. And so what it did was effectively try and dilute this discussion in the public arena around wages for workers. Many people were like, oh, we fixed this problem. This was a good thing. Prop 22 fixed the problem while simultaneously legalizing piece pay that was unpredictable. And so what we've seen since Prop 22 passed in California has been everything that we were worried about. Things have gotten really bad, especially since the unemployment insurance checks have run dry. A lot of people are trying

to work again. There isn't enough demand for those people. Wages are much lower than they were pre-pandemic, pre-Prop 22, and all of the promises that the companies made, both legally made and sort of had made just during the campaign have sort of washed away. Yeah, absolutely. You know, it was really shocking to see that, you know, after making all of these pledges in the Prop 22 campaign, how they just broke so many of them so quickly after the initiative actually passed in terms of, you know, workers saying that they were being paid less, the companies raising their their fees afterward, which they said was not going to be necessary. And there were just so many examples where their whole campaign, the way that they framed it was just lies, basically, in order to win over the public and to ensure that they supported this law that cemented workers in this particular place where they wanted to keep them, right, with this substandard set of protections, wages, benefits, things like that. One of the things that you described in the article that I thought was

really interesting was how you said that early in like Uber and Lyft's existence, the kind of advertising that you would see was kind of like these young, usually white people, you know, using the service, it was oriented toward the consumers in this way. And then during Prop 22, it was reframed as this kind of service that provides work for Black workers, for people of color, and how that kind of changed the orientation of what the service was supposed to be. And as you say, kind of made race a really explicit part of the campaign. It might be hard for people to remember this, but it just so happens that I was studying the taxi industry just as Uber and Lyft were disrupting it in San Francisco. And I was struck that a huge part of their marketing campaign to make people feel safe about getting in strangers' cars was to advertise really pretty white women in their images as though it were really pretty white women in their images, as though it were really pretty white women that were going to be picking you up in your car. That was Lyft. And then Uber had

images of like cool hipsters who were just like having a good time, you know, not a care in the world, they were going to drive your body from point A to point B. And it wasn't even work for them. It was just kind of on their way. And I think that that was a really strategic and important marketing that was really rooted in racism. When people talk about the taxi industry, there's often sort of subtle racist observations or attempts to describe immigrant men who are on their phones talking in foreign languages, who I've heard things about how clean they are, how not clean they are, playing foreign music. And in order to distinguish themselves from the taxi industry and make people comfortable with their services, they were really, really using race to sell the work, to make it seem like you

were going to be driven around by, you know, a pretty white woman who was just like, having a good time or hip white guys who weren't even working. And, and it wouldn't be, you know, the gruff immigrant taxi worker. And then, of course, no white people are going to be doing this work. Look, this is very much a racialized labor market. I mean, according to Lyft's own data, I think they say something like 70 to 76% of their workforce nationwide, all over the country is actually immigrants and people of color in urban areas, like in San Francisco and LA, that number is much, much higher. It's almost a completely immigrant and racial minority workforce. And so, you know, fast forward, I guess, 2013 to 2020, fast forward seven years, and instead of having

ads with pretty white women, they had these ads with immigrant men and single African American women. And what I argue is that they really benefited from racializing their workers and campaign imagery and marketing and sort of claiming knowledge of and compassion towards these workers' struggles. And I think it's important to note that this campaign was happening in the midst of the coronavirus pandemic. Transportation workers in California disproportionately died as a result of the occupational hazard of being exposed to people who had COVID. And again, that was mostly African-American workers and Latino workers who were dying in this industry. And you also had the Black Lives Matters uprisings. In the midst of this sort of racial reckoning, they were benefiting from the racialization or the racializing of their workforce and their campaign imagery and saying, you know, these workers, they need the kind of freedom that our work provides them with.

We are facilitating economic independence for racial minorities. They, you know, all the ads featured these smiling black and brown faces championing Prop 22. It was over the top and remarkable in many ways. They had also these alliances with black leaders like Alice Huffman, who was the longtime head of the California NAACP and also independent political consultant who ended up being paid by the campaign. And to have the NAACP and also independent political consultant who ended up being paid by the campaign. And to have the NAACP behind you in a proposition during a moment of national racial reckoning was a huge coup for these companies. And she sent out emails that said that communities of color support Prop 22 and that this is a win-win for Black and Brown workers

and for Californians more broadly. It was just such a cynical, depressing, awful use of race to sell something that ultimately resulted in the legalization of laws that subordinate people of color. Absolutely. I think that's such an important point too, because as you point out in the article, I believe it was 44% of Black people in California who did vote, Black voters, I guess, voted in favor of Prop 22. And I think that you can chalk a lot of that up to, you know, the way that it was advertised, the alliances with organizations like the NAACP, which convinced people that, you know, this is actually in the interest of black people and of people of color.

So you should support this. So it really shows the kind of influence that they can have in framing it in this way, even if, you know, it doesn't really provide the benefits that they are pretending it does in the ad campaigns. Totally. And I should say that, like, I think that if I had not been studying this, I don't know that I would have gotten it either. I mean, it was very confusing. The ballot measure readability score was set at grade level 18, which means that it's sort of a formula that says that like based

on grade levels. So a score of five would mean that a fifth grade student would be able to read and comprehend the text. And so a score of 18 meant that a person with 18 years of U.S. formal education would be able to read and comprehend the text, which really is like, you know, graduate school or postgraduate school. It was complicated and purposefully so. This was all about obfuscating. I mean, this bill passed because they obfuscated what it actually did, and they hid behind race to pretend like this was going to be new benefits for racial minority workers instead of taking away all basic employment rights, including the minimum wage and overtime. This is just so incredibly insidious. I remember I heard soon after Prop 22 passed, I heard Anthony Fox, the former Obama Transportation Secretary and

African-American, articulate on NPR that Prop 22 creates a wage floor. He said, so whereas before Prop 22, there was no floor below which driver earnings could go, Prop 22 establishes a minimum standard that is actually 20% over the current prevailing minimum wage anywhere in California. And that was just, excuse my French, but that was just bullshit. That is not what it did. But the company representatives continue to talk about it as though it were going to give workers more than the minimum wage. When it went again, what it did was take away the minimum wage. It's so shocking to hear you like describe it, you know, and, you know, even just thinking back to the whole campaign and how it played out. It's just so shocking to think about what they got away with.

But, you know, as you say, like this was Uber's kind of sales pitch to the public. But it wasn't just a one sided thing. It wasn't just Uber and, you know, the other gig companies, not just Uber making this pitch for Prop 22. But as you discussed in the two historical examples, there was also an organized opposition to Prop 22 and to this broader gig model. And in California, you know, that took the form of Rideshare Drivers United, as well as the larger No on Prop 22 campaign. So what stands out to you about these organizing efforts? And how do they describe how gig companies are treating them? I have to say that the workers who'd fought this measure, many of them were homeless. People were

really struggling. They were not getting paid to fight this. Some of them actually stopped working for these companies to try and find other work, other types of work after the law was actually passed. But those people continue to organize with Rideshare Drivers United because they care so much about these issues. And I say all of that just to really underscore how in awe I am. I think that we sort of implicitly understand people doing things in their own interests. And I feel like a lot of the workers that I was observing weren't doing things in their own interests. They were really doing things in the interests of the collective. And I was so, so inspired by them. And again, it was their observations that even led me to make this historical connection and want to write this

article. So the workers themselves, primarily, you know, again, immigrants and racial minority workers, were really outraged at the absurdity of the use of race in this campaign, especially because many of them were also involved in the Black Lives Matters movement. And so it was crazy to them that Uber and Lyft were claiming to be anti-racist companies and donating to, you know, criminal justice organizations while at the same time trying to pass this law. And they said, really, I heard really insightful things from people, including, I heard several organizing workers say, you know, they're trying to divide our bodies to pretend like racism is just in the criminal justice system

and not also in the economy, not also in the market. And I began the paper with this sort of vignette of, it was the anniversary of Martin Luther King's, I Have a Dream speech at the March on Washington for Jobs and Freedom. And that day or that weekend, Uber started this absurd campaign in which they put these huge billboards in urban areas all over America that said, you know, if you tolerate racism, delete Uber, as though Uber was anti-racist. I mean, it didn't make any sense. And the one in the Bay Area that the driver spotted was in downtown Oakland. So like historic downtown Oakland, home to the Black Panther movement, is particularly sort of, I think, problematic. Drivers are like, what does this even mean? This doesn't make sense. And I have to say, it didn't make sense to me either.

Like, what does this mean if you tolerate racism, delete Uber? And they're really, really angry about it. And then some drivers with the coalition against Prop 22 or no on Prop 22 staged this like sort of counter protest where they held up a banner that said, if you support racial justice, vote no on Prop 22. And a lot of drivers felt like that particular billboard and just all of the marketing schemes that the companies engaged in during the Prop 22 campaign in which they sort of positioned themselves as racially sensitive, caring about issues of equality and equity, they really felt like it was infuriating. I mean, people were really, really pissed off. And so in addition to like having to constantly push back against the racial benevolent narratives that their employers were utilizing to pass subminimum wage laws, or what I call racial wage codes, the workers were simultaneously just like trying to live, trying to survive. And so in the article, what I do is to say,

they shaped their resistance in terms of racial and economic justice. And the examples that I give are how during this campaign, which again, coincided with the coronavirus pandemic, these people who were deemed essential workers by law, really engaged in beautiful acts of solidarity and support. So in addition to saying, you know, that their bodies couldn't be divided, and the companies were sort of attempting to bifurcate the injustices that they experienced, as racial minority workers, they banded together, and they did like these amazing, just like such beautiful, organized responses. So the companies, like while they were saying that, oh, we're going to donate all this money to this criminal justice organization, they were making drivers pay for their own personal protective

equipment. And maybe it's hard for people to remember now, but it was in a moment when there was no PPE, it was very hard to get hand sanitizer. Like I talked to drivers who are making their own hand sanitizer out of vodka. And so the drivers secured a bunch of masks and hand sanitizer, and they did these distributions in front of the hubs, in front of the lift hub close to the airport here in San Francisco. And the idea was like, sort of to emphasize not only to provide this sort of mutual aid, but also to emphasize, look, it is not the state that is supporting you. And it is not the companies that are supporting you. And it was through these distributions that they had a really amazing one on one conversations with

other workers who were not part of the campaign about Prop 22, what it meant, and why it was going to be so bad. The other sort of awful thing that happened during this time period, is that because the companies had refused to pay into unemployment insurance, for the past, you know, seven years, when there wasn't any work, like there was no one to pick up on the streets, many of these drivers qualified for unemployment insurance. But the companies were telling them that they couldn't get it or shouldn't get it, that they should apply for another form of emergency unemployment insurance that was specifically for independent contractors that

Congress had created. But that emergency unemployment insurance was dramatically less than how much drivers were actually owed under AB5, under state law. And so these drivers figured it out. They started these unemployment insurance assistance campaigns. They organized these online town halls to discuss how to get unemployment assistance. And then they connected the unemployment insurance assistance campaigns to Prop 22 saying, look, the reason that you were even owed this is because of AB5, because this law passed. Prop 22 would take this away from you. And they rooted their analysis in material anti-racism, saying economic justice is racial justice. That was sort of the line of the campaign on the part of drivers pointing out how this was going to have a

deleterious impact on racial minority workers. And there's just one instance that I always think of, I think about this actually every day, an elderly African American driver that I know in LA. And it brings me to tears to even think about it. And he wasn't the only one that did it. I heard other stories, but he was the one that I knew and who I talked to about it. He shared his unemployment insurance check with undocumented drivers. So there are a lot of undocumented drivers and undocumented workers were not getting unemployment insurance. And so he was an older guy. He didn't have dependents. And so he was sharing his checks. And it was such a beautiful act of mutual aid. He didn't see it as charity. He didn't see it as like being generous.

He was just like, they need to survive. We're in this together. I'm sharing what I have. And that kind of generosity and sharp contrast to what these companies were doing with Prop 22 was just so striking. Yeah, I think what you're describing there really puts into perspective the power differentials that were at play between Uber and these workers. But at the same time, the really inspiring and beautiful acts of solidarity that took place as they, you know, came together, formed these collective structures, tried to push back against what these companies were doing, but also, you

know, to support one another in these really, really difficult times. I want to ask you two final questions before I let you go. The first is that in August, Prop 22 was ruled unconstitutional by a judge in California. Why was that ruling made? And do you think this will be the end of Proposition 22 and the return of AB5 and the recognition that these workers should be employees? Immediately after Prop 22 was passed, the SEIU attorneys brought a lawsuit claiming it was unconstitutional. And the lawsuit was based on a number of different claims, but the ones that the lower court ultimately accepted, and this is a little bit complicated, so forgive me, they accepted that the part of the proposition that says that

workers cannot basically form a union or that the government of California cannot legislate to help the workers form a union was not relevant to the way that the proposition described itself. So there's a rule, sort of an esoteric rule in California called the one subject rule. And propositions are not supposed to be like, too complicated and cover lots of different issues. And they said that this fell outside the boundaries of what the proposition itself said it was going to do, which was make drivers independent contractors. So that part of the proposition was excised. But more critically, in California, the workers' compensation scheme that we have, so for those of your listeners who don't know, in the US, we have workers' compensation statutes. They're locally administered by state governments, and they provide a number of things, including disability, health benefits, compensation if you're injured on the job for a long period of time, things like that. So this is actually a very important protection for workers in this industry

because this is such an incredibly dangerous industry. The workers' compensation scheme was created through the California Constitution during the Gilded Age. So the reason that this was put into the California Constitution was specifically so that industry could not undermine it. And it was written because all of a sudden there were really awful accidents that were going up in workplaces as a result of both shifting transportation technologies as well as just the advent of Fordism, essentially. And so we have this workers' compensation scheme that's in the California Constitution. And the part of the proposition that made workers independent contractors also prevented

the legislature from essentially providing a workers' compensation scheme to this workforce. And the court said that that was unconstitutional, again, because the Constitution gives the legislature the plenary power to create workers' compensation schemes. And so Judge Roche said this was unconstitutional, and that this made the entire proposition unconstitutional, that this couldn't be excised from the proposition, and the rest of it be left the way it was because this was a central part of the proposition. And so on these issues, the proposition was struck down. I don't know what the schedule is like for appeal. The companies have done something that's called an intervention. So actually, it's the state of California that is defending the proposition

since it is now law. It is the Attorney General state of California that is defending the proposition, since it is now law. It is the Attorney General's Office that has to defend the proposition. But I think acknowledging that the Attorney General's Office might not have their best interests in mind, the companies have filed as interveners. So they are now parties to this litigation. And so they are now able to fight the SCIU attorneys, the union attorneys at an appellate level and likely at California Supreme Court level to have the lower court's decision overturned. So I don't know exactly what's going to happen at either the appellate level or the Supreme Court level. But one thing I can say, as generations of law scholars and political scientists have pointed out,

courts are political entities. And it was the same California Supreme Court that unanimously decided dynamics, which ultimately gave us AB5, that will also hear this case. And we know how they feel about these business models and the skirting of laws. And so I would not be surprised if this law was ultimately held unconstitutional. That is my prediction, but I cannot say for sure. But it's not stopping these companies from replicating it all over the country. So they've already introduced a very similar initiative in Massachusetts, almost exactly like Prop 22. It's not going to face the same legal problems that Prop 22 faced because it's in an entirely different jurisdiction with a different constitution. So certainly the fight

is not over. I think what you're describing there is so important. Obviously, it is a bit confusing, but hopefully, as you're describing, this will be the end of Proposition 22 after a bit more legal wrangling. But as a final question, you know, another example that really stood out to me as I was reading the article was the recent passage of six bills granting new rights and protections to delivery couriers in New York City after sustained pressure by Los Deliveristas Unidos, who are, you know, a group of gig workers who have organized, who are mainly migrant and immigrant workers. And so that seemed like a really good example as well of workers kind of pushing back against this kind of, you know, wage code that you're describing, that is kind of inherent to

the gig work model. So as a final question, what do you make of this win by workers in New York City and the organizing that they've been doing? From what I can tell from afar, the Los Libres Estados Unidos are really an amazing force. I don't know very much about them. I follow the New York Taxi Workers Alliance work. I know that the Los Libres Estados Unidos took a strong stance against the sectoral bargaining compromise that was proposed by the company union in New York City, the ironically named Independent Drivers Guild. And so I have good feelings about them and where they're going. And I think that a lot of the laws that they passed in New York City, you know, with regard to access to bathrooms and, you know, essential,

other essential protections, it's just very, very important and very heartening. I was kind of concerned that getting these bills passed was going to sort of take the wind out of the wings of any sort of legislative energy towards meeting the other demands of the workforce. But I trust that they have experienced advisors and see this as the first step and not the last. I do think that this is a workforce that very much needs basic employment rights. They are the exact kind of workforce that employment rights were written for. And what, if anything, we need to be doing is growing the rights that workers have instead of limiting them. And so I'm eager to see the next steps. Absolutely. And I would say, you know, I think that this kind of contribution to the discussion about gig work, about Proposition 22, and, you know, especially how your kind of investigation into this was inspired by the workers, you know, I think makes

this incredibly important and incredibly relevant. Go check out the article. I'll include a link in the show notes. So Veena, thank you so much for taking the time to discuss this. I really appreciate it. Oh, it was my pleasure. Thank you, Paris, for having me. I look forward to many more conversations. Veena Dubal is a professor of law at UC Hastings. And if you want to read her article on the new racial wage code, you can find the link in the show notes. You can follow Veena on Twitter at at Veena Dubal. You can follow me at at Paris Marks, and you can follow theena on Twitter at at Vena DuBall you can follow me at at Paris Marks and you can follow the show at at TechWon'tSaveUs. TechWon'tSaveUs is part of the Harbinger Media Network and you can find out more

about that at HarbingerMediaNetwork.com if you want to support the work that goes into making the show every week you can go to patreon.com slash TechWon'tSaveUs and become a supporter. Thanks for listening Thank you.