Workers' Compensation

The Tug of War Saga Over Proposition 22 Continues

Sand in the Gears

By Julius Young, Partner Boxer Gerson Oakland, California

The California Superior Court has thrown sand in the gears of the gig-platform companies.

On August 20, Alameda County Superior Court Judge Frank Roesch ruled in Castellanos v. State of California that Prop 22 is unconstitutional (see link to the decision at the bottom of this post).

Worker advocates fought hard against Prop 22, but were swamped by the tsunami of money spent by the gig-work companies, who broke California spending records for their ad campaign.

Roesch’s ruling came as he granted a Petition for Order of Mandate filed by several individual rideshare drivers and the SEIU union. An earlier attempt to have the California Supreme Court deal with these issues failed, as the court declined in January 2021 to rule on the merits and wrote no opinion in refusing to hear the matter.

So the forum for determination on the constitutionality of Prop 22 defaulted to the Superior Court. Now, we’ll see the matter work its way through the California Court of Appeal, and likely to the California Supreme Court. That process can take considerable time.

In a nutshell, Roesch finds that Prop 22 is unconstitutional as it usurps the California constitution’s guarantee that the legislature has plenary power over workers’ compensation, i.e. its power to determine what will and will not be covered by workers’ compensation.

He also found that Prop 22 violates the single subject rule

And Roesch finds that Prop 22 unconstitutionally purports to limit the Legislature’s ability to pass future legislation.

While an appeal proceeds, the ridesharing companies are unlikely to change their position on Prop 22.

What does all this mean for California workers comp?

It’s possible that we will see rideshare workers file cases with the WCAB, which would then have to deal with the issue of the constitutionality of Prop 22. 

Perhaps some rideshare claims have been filed at one of California’s many workers’ comp boards and thereafter settled or stayed pending resolution of Prop 22 issues. However, to my knowledge no California workers’ comp rideshare driver claims have been ruled on by the WCAB.

With the constitutionality of Prop 22 in doubt, some rideshare drivers might well elect to pursue California workers’ comp claims on the theory that they are in fact employees under the “ABC” test outlined in the Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal. 5th 903.

My firm, Boxer & Gerson LLP,  is one of the largest workers’ comp applicant firms in California. But it was surprising to many of us that even after Dynamex and before the passage of Prop 22, few if any rideshare drivers and relatively few gig workers were coming forward to pursue workers’ comp claims. Why those claims have not materialized in the workers’ comp system is not clear.

The benefits package “guaranteed” by Prop 22 is inferior to the benefits under the California workers’ comp system. Workers’ comp benefits are available to most taxi drivers, but not to Uber and Lyft drivers under Prop 22.

Link to the Superior Court decision:

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