1 00:00:15,356 --> 00:00:22,916 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:22,956 --> 00:00:25,956 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:26,356 --> 00:00:31,756 Speaker 1: I'm Noah Feldman. It's almost a cliche to say that 4 00:00:31,796 --> 00:00:36,796 Speaker 1: the future of work lies in gig work. That might 5 00:00:36,876 --> 00:00:40,316 Speaker 1: not even be true, at least not if California gets 6 00:00:40,316 --> 00:00:43,916 Speaker 1: its way. The governor there, Gavin Newsom, recently signed a 7 00:00:43,996 --> 00:00:46,116 Speaker 1: law that will have a huge impact on the way 8 00:00:46,156 --> 00:00:49,716 Speaker 1: the gig economy works in the state. The law, referred 9 00:00:49,756 --> 00:00:52,276 Speaker 1: to as a B five, is supposed to make it 10 00:00:52,396 --> 00:00:55,956 Speaker 1: harder for app based platforms like Uber and Lyft to 11 00:00:55,996 --> 00:01:00,516 Speaker 1: classify their drivers as independent contractors rather than as full 12 00:01:00,556 --> 00:01:05,036 Speaker 1: time employees. The law codifies and expands a twenty eighteen 13 00:01:05,156 --> 00:01:10,036 Speaker 1: California Supreme Court decision known as the Dynamics Case. Today, 14 00:01:10,036 --> 00:01:12,116 Speaker 1: on Deep Background, we're gonna do something a little different 15 00:01:12,116 --> 00:01:14,876 Speaker 1: than we usually do. Instead of having just one long 16 00:01:14,956 --> 00:01:17,316 Speaker 1: conversation about a topic, We're going to talk to two 17 00:01:17,436 --> 00:01:20,716 Speaker 1: different people, one at a time, with very different perspectives 18 00:01:20,716 --> 00:01:24,476 Speaker 1: on AB five. The first is Lorina Gonzalez. She's the 19 00:01:24,556 --> 00:01:28,996 Speaker 1: California assemblywoman who actually sponsored the bill. I talked to 20 00:01:28,996 --> 00:01:31,716 Speaker 1: her about why she believes in it and how exactly 21 00:01:31,756 --> 00:01:34,876 Speaker 1: it will work when it goes into effect in January. 22 00:01:35,756 --> 00:01:38,916 Speaker 1: Thank you so much for joining me. Let's start by 23 00:01:38,956 --> 00:01:42,876 Speaker 1: talking about this important and interesting bill that you've introduced 24 00:01:42,876 --> 00:01:47,276 Speaker 1: into the California legislature called AB five. That's the shorthand, 25 00:01:47,636 --> 00:01:49,996 Speaker 1: I guess AB is Assembly Bill AM I right. Yes. 26 00:01:52,236 --> 00:01:55,436 Speaker 1: AB five is connected to a decision that the California 27 00:01:55,436 --> 00:01:57,796 Speaker 1: State Supreme Court made a couple of years ago, and 28 00:01:57,796 --> 00:01:59,596 Speaker 1: it has to do with the essence of the gig 29 00:01:59,636 --> 00:02:02,956 Speaker 1: economy and how employees should be treated under the law. 30 00:02:03,076 --> 00:02:05,556 Speaker 1: Tell us what we need to know about this law. 31 00:02:05,996 --> 00:02:09,196 Speaker 1: It basically says, look, in order to be in a 32 00:02:09,316 --> 00:02:13,676 Speaker 1: pennant contractor, you have to actually do that type of 33 00:02:13,716 --> 00:02:18,476 Speaker 1: business separately than this organization. You can't be doing the 34 00:02:18,516 --> 00:02:22,116 Speaker 1: business of the company itself. So you know, if the 35 00:02:22,156 --> 00:02:25,876 Speaker 1: company is a delivery company and you're a delivery driver, 36 00:02:26,916 --> 00:02:29,436 Speaker 1: you probably work for the company. And so it's a 37 00:02:29,436 --> 00:02:33,316 Speaker 1: pretty straightforward test. We often describe it as this, if 38 00:02:33,356 --> 00:02:35,956 Speaker 1: you do the work of the company, you probably work 39 00:02:35,996 --> 00:02:39,196 Speaker 1: for them. So that's the essence of the idea. And 40 00:02:39,236 --> 00:02:41,716 Speaker 1: this is why from the standpoint of Uber or Lift 41 00:02:41,796 --> 00:02:44,636 Speaker 1: or any of the other gig economy companies it's a 42 00:02:44,676 --> 00:02:47,476 Speaker 1: disastrous decision for their business plan because it basically says 43 00:02:47,476 --> 00:02:49,476 Speaker 1: that if they're in the business of driving people around, 44 00:02:50,036 --> 00:02:54,556 Speaker 1: then a driver is an employee, is not an independent contractor, right, 45 00:02:55,196 --> 00:02:57,196 Speaker 1: And of course now Uber says they're not in the 46 00:02:57,236 --> 00:02:59,596 Speaker 1: business of driving people around, so this is going to 47 00:02:59,596 --> 00:03:01,916 Speaker 1: be They say they're in the business of connecting people 48 00:03:01,956 --> 00:03:03,796 Speaker 1: to the people who will drive them around, and that 49 00:03:03,836 --> 00:03:06,316 Speaker 1: they're doing the connection. But that's a hard case to 50 00:03:06,356 --> 00:03:09,076 Speaker 1: make out, at least under this test. The core issue 51 00:03:09,236 --> 00:03:14,196 Speaker 1: classification cases is is a given person an employee and 52 00:03:14,236 --> 00:03:18,196 Speaker 1: therefore entitled to the protections of state law for employees, 53 00:03:18,876 --> 00:03:23,116 Speaker 1: or is the person an independent contractor not restricted in 54 00:03:23,276 --> 00:03:26,756 Speaker 1: what he or she can do, but also simultaneously not 55 00:03:26,916 --> 00:03:30,716 Speaker 1: entitled to the protections that state law gives employees. Correct? Correct. 56 00:03:31,036 --> 00:03:34,836 Speaker 1: If you're an employee, you have a number of rights, 57 00:03:35,396 --> 00:03:37,956 Speaker 1: including the right to minimum wage and over time, the 58 00:03:38,036 --> 00:03:41,836 Speaker 1: right to workers compensation and employment insurance. The employer has 59 00:03:41,836 --> 00:03:44,596 Speaker 1: to put in their their required seven point five percent 60 00:03:44,676 --> 00:03:49,276 Speaker 1: to Social Security and to Medicare their contribution. You have 61 00:03:49,356 --> 00:03:51,636 Speaker 1: the right in California to paid sick days and paid 62 00:03:51,636 --> 00:03:55,036 Speaker 1: family leave. You have the right to, of course join 63 00:03:55,076 --> 00:03:59,916 Speaker 1: a union, so there are a number of individual rights. Uh, 64 00:04:00,276 --> 00:04:06,876 Speaker 1: there's there's protections against sexual harassment, there's protections against discrimination 65 00:04:07,156 --> 00:04:10,836 Speaker 1: that employees are are awarded. So that's all the good 66 00:04:10,836 --> 00:04:13,916 Speaker 1: stuff that employees get if they're classified as employees. Why 67 00:04:13,996 --> 00:04:18,396 Speaker 1: do some people want to be classified sometimes as independent contractors. Well, 68 00:04:18,996 --> 00:04:22,076 Speaker 1: some independent contractors really are small businesses and people want 69 00:04:22,076 --> 00:04:25,396 Speaker 1: to operate in that way their tax benefits. Sometimes for 70 00:04:25,756 --> 00:04:29,836 Speaker 1: an individual who has multiple clients, who is writing off 71 00:04:29,876 --> 00:04:34,156 Speaker 1: you know, a home office and gas and expenses where 72 00:04:34,156 --> 00:04:37,436 Speaker 1: they can service multiple clients but with the same sort 73 00:04:37,476 --> 00:04:40,836 Speaker 1: of needs and in which case they really are often 74 00:04:41,116 --> 00:04:45,196 Speaker 1: acting as a small business that a lot of Unfortunately, 75 00:04:45,436 --> 00:04:48,636 Speaker 1: some employees think it's better to be independent contractor because 76 00:04:48,796 --> 00:04:52,436 Speaker 1: they assume they don't need to pay as much in taxes. 77 00:04:52,476 --> 00:04:56,236 Speaker 1: That's often because they don't realize their tax implications and 78 00:04:56,396 --> 00:05:00,476 Speaker 1: aren't paying them. And there's so many small independent contractors 79 00:05:00,516 --> 00:05:02,236 Speaker 1: or have been in California that there hasn't been a 80 00:05:02,236 --> 00:05:04,276 Speaker 1: ton of enforcements, so we know we've lost a lot 81 00:05:04,276 --> 00:05:08,556 Speaker 1: of payroll taxes and taxes that are become the responsibility 82 00:05:08,676 --> 00:05:12,356 Speaker 1: of the contractor when the employer isn't pay for them. 83 00:05:12,356 --> 00:05:16,876 Speaker 1: But that, of course is unfortunate for the small business 84 00:05:17,116 --> 00:05:20,476 Speaker 1: person who doesn't realize they owe these taxes. Often, big 85 00:05:20,476 --> 00:05:23,156 Speaker 1: companies like Uber and Lyft or door Dash and many 86 00:05:23,196 --> 00:05:26,236 Speaker 1: many others, they say, we want to be disruptors. And 87 00:05:26,716 --> 00:05:28,956 Speaker 1: what they mean by disruption is they're not going to 88 00:05:29,036 --> 00:05:31,716 Speaker 1: have to treat the people who work for them as employees. 89 00:05:32,356 --> 00:05:34,756 Speaker 1: And they have a whole theory about why that's a 90 00:05:34,756 --> 00:05:37,876 Speaker 1: good thing, and others have a view about why it's 91 00:05:37,876 --> 00:05:39,716 Speaker 1: a bad thing. But the point is it's a change, 92 00:05:40,356 --> 00:05:43,596 Speaker 1: and the State Supreme Court, I guess, in the Dynamics decision, 93 00:05:43,836 --> 00:05:46,956 Speaker 1: had to set down a rule to help clarify whether 94 00:05:46,996 --> 00:05:50,436 Speaker 1: someone counts as an employee or an independent contractor when 95 00:05:50,516 --> 00:05:54,476 Speaker 1: working for something like one of the gig economy businesses. 96 00:05:54,716 --> 00:05:56,716 Speaker 1: And what's the basic rule? I think there are three parts, 97 00:05:56,756 --> 00:05:58,916 Speaker 1: aren't there? There are three parts? But I want to 98 00:05:58,916 --> 00:06:00,676 Speaker 1: step back for a minute, because a lot of people 99 00:06:00,836 --> 00:06:05,156 Speaker 1: do identify this as a kind of a knee jerk 100 00:06:05,156 --> 00:06:08,716 Speaker 1: to the gig economy, when in fact, the Dynamics decision 101 00:06:08,876 --> 00:06:10,836 Speaker 1: had been going through the courts for ten years. It's 102 00:06:10,876 --> 00:06:14,556 Speaker 1: really not what we think of as the Ubernlift Postmates 103 00:06:14,596 --> 00:06:18,356 Speaker 1: since Dart kind of economy. These were delivery drivers that 104 00:06:18,556 --> 00:06:21,876 Speaker 1: that predated a lot of the gig economy work. And 105 00:06:22,036 --> 00:06:25,556 Speaker 1: so although it does affect the gig economy and that 106 00:06:25,716 --> 00:06:29,396 Speaker 1: has been the largest abuses we have seen, it was 107 00:06:29,596 --> 00:06:33,716 Speaker 1: never a decision or a bill that simply was targeted 108 00:06:33,716 --> 00:06:35,436 Speaker 1: at ubern lift. And I think that's important because a 109 00:06:35,476 --> 00:06:37,436 Speaker 1: lot of folks who have been caught up in this 110 00:06:37,556 --> 00:06:40,356 Speaker 1: bill said, well, why are you targeting us? It was 111 00:06:40,356 --> 00:06:43,596 Speaker 1: supposed to be towards ubernlift. No, it's about misclassification in general. 112 00:06:43,636 --> 00:06:45,476 Speaker 1: And if you look at a state like California, where 113 00:06:45,516 --> 00:06:48,716 Speaker 1: misclassification cost about seven billion dollars a year to our 114 00:06:48,796 --> 00:06:51,676 Speaker 1: state and thus to our taxpayers, this is a larger 115 00:06:51,796 --> 00:06:55,276 Speaker 1: decision and a larger issue that affects many more people 116 00:06:55,356 --> 00:06:58,036 Speaker 1: than those in the gig economy. How are you measuring 117 00:06:58,156 --> 00:07:00,556 Speaker 1: the cost to the California's economy when you say seven 118 00:07:00,556 --> 00:07:02,636 Speaker 1: a billion dollars? What's that? What is that number? What 119 00:07:02,676 --> 00:07:05,276 Speaker 1: are you measuring? That comes from? Of course the state 120 00:07:05,756 --> 00:07:11,276 Speaker 1: Labor Commissioner's office, but it includes everything payroll taxes, of course, 121 00:07:11,436 --> 00:07:16,676 Speaker 1: it to workers compensation claims that aren't paid for when 122 00:07:16,996 --> 00:07:20,316 Speaker 1: somebody doesn't have workers compensation. Often doesn't have healthcare either, 123 00:07:20,396 --> 00:07:21,996 Speaker 1: and so when they're hurt on the job, it's we 124 00:07:22,116 --> 00:07:24,196 Speaker 1: as taxpayers pick it up at the emergency room, so 125 00:07:24,636 --> 00:07:27,836 Speaker 1: indigent care. When somebody loses their job, they no longer 126 00:07:27,876 --> 00:07:30,636 Speaker 1: have a job, they don't have unemployment insurance, So we 127 00:07:30,756 --> 00:07:33,556 Speaker 1: often have to pick those types of costs up. When 128 00:07:34,036 --> 00:07:37,196 Speaker 1: somebody isn't being paid enough, obviously we have to pay 129 00:07:37,236 --> 00:07:41,196 Speaker 1: in terms of food stamp, subsidize housing, and subsidize free 130 00:07:41,276 --> 00:07:43,516 Speaker 1: lunch program. So there's a number of ways that we 131 00:07:43,596 --> 00:07:47,596 Speaker 1: subsidize companies who must classify their workers, and it provides 132 00:07:47,596 --> 00:07:51,396 Speaker 1: a cost, of course to the state. As you describe 133 00:07:51,556 --> 00:07:54,476 Speaker 1: a B five, it sort of sounds like no reasonable 134 00:07:54,556 --> 00:07:57,316 Speaker 1: person could disagree with it, and I'm sure that as 135 00:07:57,356 --> 00:08:01,196 Speaker 1: a sponsor of the bill, that's exactly what you believe. Nevertheless, 136 00:08:01,316 --> 00:08:03,796 Speaker 1: in the real world, there are people, including even some 137 00:08:04,396 --> 00:08:07,716 Speaker 1: uber or lift drivers, who are nervous about the possibility 138 00:08:07,756 --> 00:08:10,196 Speaker 1: that they will lose the flexible ability that they value, 139 00:08:10,476 --> 00:08:13,676 Speaker 1: and perhaps are also nervous about thinking of themselves as 140 00:08:13,716 --> 00:08:16,556 Speaker 1: employees when they haven't considered themselves as employees. They've thought 141 00:08:16,556 --> 00:08:21,156 Speaker 1: of themselves to a great extent as independent contractors. What 142 00:08:21,476 --> 00:08:26,356 Speaker 1: would you say to people who have those fears or concerns. 143 00:08:27,356 --> 00:08:28,956 Speaker 1: I take it the part of your job as a 144 00:08:29,036 --> 00:08:30,596 Speaker 1: legislators get the law pass. A part of it is 145 00:08:30,596 --> 00:08:32,516 Speaker 1: also convincing the people who will be affected by the 146 00:08:32,636 --> 00:08:34,956 Speaker 1: law that it will make their lives better and will 147 00:08:34,956 --> 00:08:37,236 Speaker 1: not make it worse. So what would you say? And 148 00:08:37,396 --> 00:08:39,916 Speaker 1: that's true. And I kind of have a unique perspective 149 00:08:39,956 --> 00:08:41,756 Speaker 1: on this because I came out of organized labor. I 150 00:08:41,836 --> 00:08:44,356 Speaker 1: was a labor leader when I was elected to the 151 00:08:44,476 --> 00:08:47,636 Speaker 1: State Assembly, and so I am used to dealing with 152 00:08:47,796 --> 00:08:51,636 Speaker 1: workers who operate out of fear. Often in organizing drives, 153 00:08:51,676 --> 00:08:56,076 Speaker 1: you see it a lot. In contract negotiations, you see it. 154 00:08:56,436 --> 00:09:00,636 Speaker 1: And so I understand and am very empathetic to workers 155 00:09:00,716 --> 00:09:06,156 Speaker 1: being afraid, being ill convinced of things by bosses who 156 00:09:06,916 --> 00:09:09,276 Speaker 1: often lie or mislead those workers. And that's what we've 157 00:09:09,276 --> 00:09:12,196 Speaker 1: seen here, and we try to be very obvious these companies, 158 00:09:12,236 --> 00:09:16,356 Speaker 1: whether it's Uberlift or Postmates, Instacart, whoever it is, they're 159 00:09:16,396 --> 00:09:19,356 Speaker 1: controlling the schedules of these workers. Now, so this so 160 00:09:19,516 --> 00:09:23,156 Speaker 1: called flexibility is an interesting argument, and sometimes you have 161 00:09:23,196 --> 00:09:25,196 Speaker 1: to break it down and have the individual discussions with 162 00:09:25,316 --> 00:09:29,556 Speaker 1: the drivers. They often know, you know Instacart, for example, 163 00:09:29,676 --> 00:09:32,396 Speaker 1: we had a people complaining that if you try to 164 00:09:32,556 --> 00:09:34,476 Speaker 1: not take a job, they won't pass you on to 165 00:09:34,556 --> 00:09:37,396 Speaker 1: the next job. Right you can't reject the job. So 166 00:09:38,116 --> 00:09:41,836 Speaker 1: that's not quite the flexibility they say that they have, 167 00:09:42,156 --> 00:09:44,956 Speaker 1: or that they convince their drivers they have. You can't 168 00:09:45,036 --> 00:09:48,156 Speaker 1: just wake up at two in the morning in an 169 00:09:48,196 --> 00:09:51,156 Speaker 1: industrial area where there are no rides and say you're 170 00:09:51,316 --> 00:09:55,076 Speaker 1: a lift driver and be carting somebody, because if it's 171 00:09:55,116 --> 00:09:58,156 Speaker 1: not available, it's not available. We've seen in New York City, 172 00:09:58,356 --> 00:10:01,676 Speaker 1: even with workers being independent contractors, that uber and lift 173 00:10:01,756 --> 00:10:05,116 Speaker 1: or are now controlling which parts of the city that 174 00:10:05,196 --> 00:10:08,316 Speaker 1: they can give rides in. We know now with the 175 00:10:08,356 --> 00:10:11,756 Speaker 1: way they INCENTI yes, certain areas and ensure that people 176 00:10:11,956 --> 00:10:17,076 Speaker 1: can actually make some money. They push people to certain 177 00:10:17,116 --> 00:10:19,396 Speaker 1: areas of the city during certain times. So there is 178 00:10:19,436 --> 00:10:21,476 Speaker 1: a level of control being operated now, and you often 179 00:10:21,556 --> 00:10:23,076 Speaker 1: have to break it down for the drivers and have 180 00:10:23,196 --> 00:10:25,276 Speaker 1: that discussion. That all makes perfect sense to me. I 181 00:10:25,316 --> 00:10:27,996 Speaker 1: think there's not the dedependence that people necessarily imagine that 182 00:10:28,076 --> 00:10:30,356 Speaker 1: there is. But what about the argument that there will 183 00:10:30,356 --> 00:10:33,436 Speaker 1: be even less independence if the companies now, for example, 184 00:10:33,556 --> 00:10:36,236 Speaker 1: know they have to pay minimum wage for an hour 185 00:10:36,356 --> 00:10:38,996 Speaker 1: that the driver has worked, and then the driver wants 186 00:10:39,036 --> 00:10:42,076 Speaker 1: to say I'm available at a time when statistically it's 187 00:10:42,116 --> 00:10:45,396 Speaker 1: improbable that there will be enough jobs there. I would 188 00:10:45,396 --> 00:10:46,996 Speaker 1: imagine that what I would do if I were the company, 189 00:10:46,996 --> 00:10:48,596 Speaker 1: as I would just say, well, you can't, you can't 190 00:10:48,636 --> 00:10:50,876 Speaker 1: work this hour because we just don't think you're going 191 00:10:50,956 --> 00:10:53,036 Speaker 1: to make enough to get past the minimum wage. And 192 00:10:53,956 --> 00:10:55,796 Speaker 1: so it might be that there's you know that there 193 00:10:55,876 --> 00:10:57,916 Speaker 1: is a limitation to freedom now, but wouldn't there be 194 00:10:57,996 --> 00:11:02,676 Speaker 1: even more limitations once they are a categorization of drivers 195 00:11:02,756 --> 00:11:06,036 Speaker 1: as employees. Well, you know, that's ultimately up to the company, 196 00:11:06,276 --> 00:11:09,036 Speaker 1: and that type of flexibility, whether you're an independent contractor 197 00:11:09,196 --> 00:11:12,036 Speaker 1: or an employees always up to the company. And so 198 00:11:12,276 --> 00:11:14,436 Speaker 1: I think that that's a red herring because I think 199 00:11:14,596 --> 00:11:18,796 Speaker 1: it's happening now, and so M yes, there there are 200 00:11:18,916 --> 00:11:22,476 Speaker 1: people who will say, but you know, what if I 201 00:11:22,596 --> 00:11:25,396 Speaker 1: want to drive for five dollars an hour? We have 202 00:11:25,516 --> 00:11:27,916 Speaker 1: laws in this country. You know, we've heard it plenty 203 00:11:27,956 --> 00:11:31,196 Speaker 1: of times. What if my thirteen year old one wants 204 00:11:31,276 --> 00:11:34,276 Speaker 1: to work, you know, we don't allow that to happen. 205 00:11:34,436 --> 00:11:36,276 Speaker 1: What if they want to work in a factory and 206 00:11:36,636 --> 00:11:39,356 Speaker 1: make subminimum wage. You know, we have laws for a 207 00:11:39,436 --> 00:11:41,956 Speaker 1: reason so that there's an even playing field. And we 208 00:11:42,076 --> 00:11:46,956 Speaker 1: know that the so called decisions by some workers to 209 00:11:47,116 --> 00:11:50,716 Speaker 1: want to undercut basic labor laws hurt all workers. And 210 00:11:50,876 --> 00:11:53,676 Speaker 1: so you know, the vast majority I think of drivers 211 00:11:53,716 --> 00:11:56,316 Speaker 1: that we talked to want to make above minimum wage. 212 00:11:56,356 --> 00:12:00,116 Speaker 1: Of course they want to have the benefits of employment. Well, 213 00:12:00,156 --> 00:12:02,676 Speaker 1: with that, you have to require rules. And one of 214 00:12:02,716 --> 00:12:04,956 Speaker 1: the things I hear most often, not just from drivers, 215 00:12:05,036 --> 00:12:08,076 Speaker 1: but you know freelancers in general, is if I want 216 00:12:08,116 --> 00:12:11,076 Speaker 1: to be an independent contractor, why can't I just do that? Well, 217 00:12:11,116 --> 00:12:13,676 Speaker 1: you can go start your own business, right, nothing prevents 218 00:12:13,716 --> 00:12:17,276 Speaker 1: you from going in starting your own car business, for example, 219 00:12:17,356 --> 00:12:19,436 Speaker 1: where you can shuttle people back and forth, but there 220 00:12:19,476 --> 00:12:22,756 Speaker 1: are rules that you have to abide by. You can't decide. 221 00:12:22,796 --> 00:12:24,876 Speaker 1: We live in a society where you can't decide I'm 222 00:12:24,876 --> 00:12:28,196 Speaker 1: going to undercut basic labor laws which affect and hurt 223 00:12:28,276 --> 00:12:31,396 Speaker 1: other people because I want to. I mean, you can 224 00:12:31,676 --> 00:12:34,076 Speaker 1: do that. The worker themselves aren't going to be held liable, 225 00:12:34,116 --> 00:12:37,596 Speaker 1: but the companies can't hire people in that kind of situation. 226 00:12:38,316 --> 00:12:41,116 Speaker 1: I know that journalists are not the main constituency that 227 00:12:41,156 --> 00:12:43,756 Speaker 1: you're setting out to protect here. But I'm a journalist 228 00:12:44,116 --> 00:12:46,036 Speaker 1: and so it's on my mind, and I don't think 229 00:12:46,036 --> 00:12:47,756 Speaker 1: I'm alone in this respect. One of the things that 230 00:12:47,876 --> 00:12:50,876 Speaker 1: AB five does is, if I'm not mistaken, it says 231 00:12:50,956 --> 00:12:53,676 Speaker 1: that if you're a freelance writer and you write more 232 00:12:53,716 --> 00:12:56,756 Speaker 1: than thirty five articles in a year for a given publication, 233 00:12:57,196 --> 00:12:59,316 Speaker 1: then you have to be treated as an employee of 234 00:12:59,396 --> 00:13:02,156 Speaker 1: that publication. So I, for example, write a column a 235 00:13:02,156 --> 00:13:04,316 Speaker 1: couple times a week for Bloomberg. If I lived in 236 00:13:04,356 --> 00:13:06,756 Speaker 1: California and Bloomberg was in California, they would have to 237 00:13:06,796 --> 00:13:08,316 Speaker 1: make me an employee. They couldn't treat me as an 238 00:13:08,356 --> 00:13:11,076 Speaker 1: independent contractor as they presently do, right, And I think 239 00:13:11,436 --> 00:13:14,316 Speaker 1: some journalists are worried about this. I mean it strikes me, 240 00:13:14,436 --> 00:13:17,556 Speaker 1: as you know, I actually do feel genuinely like an 241 00:13:17,556 --> 00:13:20,596 Speaker 1: independent contractor sitting in my office. I have a real 242 00:13:20,716 --> 00:13:23,116 Speaker 1: job for a university, and then I also write in 243 00:13:23,116 --> 00:13:24,836 Speaker 1: my column, so I don't feel like I'm an employee 244 00:13:24,876 --> 00:13:28,996 Speaker 1: of the of the entity that publishes my articles. What's 245 00:13:29,036 --> 00:13:30,916 Speaker 1: the what's your response to that? To that number, and 246 00:13:30,996 --> 00:13:33,996 Speaker 1: why did you why not an't make an exemption for journalists. Well, 247 00:13:34,036 --> 00:13:37,316 Speaker 1: I didn't make an exemption for journalists because we worked 248 00:13:37,396 --> 00:13:41,916 Speaker 1: with actual staff journalists. We worked with the unions that 249 00:13:42,076 --> 00:13:46,116 Speaker 1: represent journalists and the publications themselves. And there has been 250 00:13:46,236 --> 00:13:50,756 Speaker 1: a massive abuse of the use of permalancers or freelancers, 251 00:13:51,076 --> 00:13:54,556 Speaker 1: independent contractors in journalism, and most journalists will tell you 252 00:13:54,676 --> 00:13:57,236 Speaker 1: that that that abuse exists. So if you provide a 253 00:13:57,316 --> 00:13:59,996 Speaker 1: full exemption, especially in a time when you kind of 254 00:13:59,996 --> 00:14:03,116 Speaker 1: see this resurgence of unions in the newsroom, you're really 255 00:14:03,196 --> 00:14:07,796 Speaker 1: going to put those efforts at jeopardy. Journalism has changed, 256 00:14:08,316 --> 00:14:13,396 Speaker 1: But that's not a reason to basically get the career 257 00:14:13,916 --> 00:14:16,556 Speaker 1: of journalism. Let me ask you what is really a 258 00:14:16,596 --> 00:14:18,836 Speaker 1: philosophical question. And you know, I understand that you come 259 00:14:18,876 --> 00:14:21,196 Speaker 1: out of labor, so I get I have some inkling 260 00:14:21,236 --> 00:14:24,236 Speaker 1: of where you'll answer me from. But the philosophic question 261 00:14:24,356 --> 00:14:28,116 Speaker 1: is sort of this. To me, there's very little doubt 262 00:14:28,196 --> 00:14:32,556 Speaker 1: that there are lots of industries where unionization is absolutely 263 00:14:32,756 --> 00:14:37,916 Speaker 1: necessary in order that management not exploit workers. And then 264 00:14:37,916 --> 00:14:40,556 Speaker 1: there are some industries where the workers actually have either 265 00:14:40,596 --> 00:14:44,756 Speaker 1: a reasonable amount of bargaining power or significant independence in 266 00:14:44,796 --> 00:14:47,556 Speaker 1: the kinds of judgments and decisions they make, where you know, 267 00:14:47,596 --> 00:14:49,596 Speaker 1: it makes sense if people want to be independent contractors, 268 00:14:49,636 --> 00:14:52,316 Speaker 1: they should be able to. And then in between there's 269 00:14:52,316 --> 00:14:56,436 Speaker 1: the very complicated, messy world in which we actually live, 270 00:14:56,516 --> 00:14:59,076 Speaker 1: where you have to go deep into the weeds when 271 00:14:59,116 --> 00:15:01,996 Speaker 1: it comes to those really hard choices. As I understand it, 272 00:15:02,076 --> 00:15:05,476 Speaker 1: a B five for the most part, sets the presumption 273 00:15:05,636 --> 00:15:08,476 Speaker 1: in favor of a person being an employee, and it's 274 00:15:08,516 --> 00:15:12,196 Speaker 1: pretty hard to get out of that. I'm wondering why, 275 00:15:12,716 --> 00:15:16,356 Speaker 1: in the margin where it's genuinely hard, where it's tricky, 276 00:15:17,036 --> 00:15:20,556 Speaker 1: why not set the default the other way. Why not say, 277 00:15:20,996 --> 00:15:24,316 Speaker 1: let's experiment, let's try new sorts of things out, and 278 00:15:24,436 --> 00:15:26,476 Speaker 1: then over time, if it's not working, we can switch 279 00:15:26,516 --> 00:15:29,516 Speaker 1: it back the other way. Why isn't that sort of 280 00:15:29,916 --> 00:15:33,636 Speaker 1: spur to possible innovation, even though granted we might go 281 00:15:33,716 --> 00:15:36,476 Speaker 1: too far in some instances. So I hate to called 282 00:15:36,516 --> 00:15:39,716 Speaker 1: exemptions because there's no pure exemption. You still have requirements 283 00:15:40,156 --> 00:15:43,556 Speaker 1: to ensure somebody's an independent contractor. But in terms of 284 00:15:44,356 --> 00:15:48,196 Speaker 1: who should be considered that, we think a lot about 285 00:15:48,596 --> 00:15:52,156 Speaker 1: barriers to entry into that profession. So the higher barrier 286 00:15:52,476 --> 00:15:55,956 Speaker 1: into the entry of that profession, the more comfortable we 287 00:15:56,076 --> 00:15:59,876 Speaker 1: are saying this person has individual bargaining power. So for example, 288 00:15:59,916 --> 00:16:02,756 Speaker 1: if you're a doctor, a lawyer, you know, if there 289 00:16:03,076 --> 00:16:08,716 Speaker 1: is a many years of school, specialized schooling, testing, there's licensing, 290 00:16:09,276 --> 00:16:11,196 Speaker 1: you know, we feel a little more comfortable like that 291 00:16:11,276 --> 00:16:14,356 Speaker 1: individual can make these decisions for themselves and are actually 292 00:16:14,436 --> 00:16:18,676 Speaker 1: making these decisions and not just subject to an employer 293 00:16:18,876 --> 00:16:22,196 Speaker 1: saying this is what we're going to do, right, And 294 00:16:22,276 --> 00:16:25,316 Speaker 1: everybody has to then aqueous to that because there's so 295 00:16:25,396 --> 00:16:28,556 Speaker 1: many other of these type of employees out there who 296 00:16:28,596 --> 00:16:31,476 Speaker 1: are willing to work for less. That's basically how we 297 00:16:31,636 --> 00:16:33,516 Speaker 1: end up with a race to the bottom. And does 298 00:16:33,556 --> 00:16:34,996 Speaker 1: that not worry you as being I mean, it's a 299 00:16:35,036 --> 00:16:37,476 Speaker 1: fascinating line that you're drawing. I'm deeply fascinated by this 300 00:16:37,556 --> 00:16:39,836 Speaker 1: idea that you know, the more education you have, the 301 00:16:39,956 --> 00:16:41,756 Speaker 1: higher the barrier to entry, them more confident we are 302 00:16:41,796 --> 00:16:43,956 Speaker 1: that you have bargaining power. It sounds great, not just 303 00:16:44,436 --> 00:16:48,996 Speaker 1: not just education though, because fine artists are also exempted 304 00:16:49,556 --> 00:16:52,716 Speaker 1: through this process, and fine arts art necessary to become 305 00:16:52,716 --> 00:16:55,876 Speaker 1: an artist. You mean, well, there's a specialize I think 306 00:16:56,236 --> 00:16:58,676 Speaker 1: talent that you have that allows you to have more 307 00:16:58,876 --> 00:17:01,076 Speaker 1: bargaining power. And you ask another question, and I want 308 00:17:01,116 --> 00:17:02,956 Speaker 1: to get to that, why not air on the side 309 00:17:03,116 --> 00:17:06,396 Speaker 1: of and I will put it in my ideological stance, 310 00:17:06,476 --> 00:17:09,956 Speaker 1: why not air on the side of the company instead 311 00:17:09,996 --> 00:17:14,156 Speaker 1: of the worker, so and allow innovation because we're going 312 00:17:14,196 --> 00:17:17,196 Speaker 1: to allow these exemptions and see where it goes from there. 313 00:17:17,556 --> 00:17:19,596 Speaker 1: And I'd say, the reason I haven't done that, and 314 00:17:19,676 --> 00:17:22,796 Speaker 1: I've been very judicious. I feel like in trying to 315 00:17:22,836 --> 00:17:24,996 Speaker 1: write a law that makes the most amount of sense 316 00:17:25,076 --> 00:17:28,156 Speaker 1: for workers is being in the legislature for the past, 317 00:17:28,676 --> 00:17:31,636 Speaker 1: I guess six years now. I know that it is 318 00:17:31,716 --> 00:17:35,356 Speaker 1: always hard to undo an imbalance of power that's in 319 00:17:35,436 --> 00:17:39,276 Speaker 1: favor of corporations and of companies and that hurt workers, 320 00:17:39,436 --> 00:17:43,196 Speaker 1: that it would be much easier to correct things in 321 00:17:43,316 --> 00:17:47,276 Speaker 1: the other way. And so I was protective of workers, 322 00:17:47,436 --> 00:17:52,796 Speaker 1: and that was I think a very intentional decision in 323 00:17:52,996 --> 00:17:55,436 Speaker 1: order to say, yes, we might have to in the 324 00:17:55,516 --> 00:17:59,356 Speaker 1: future and for innovative purposes if you will, or new 325 00:18:00,116 --> 00:18:03,036 Speaker 1: kind of I guess professions that will come up. We 326 00:18:03,556 --> 00:18:06,076 Speaker 1: may need to re examine some of this, but it's 327 00:18:06,156 --> 00:18:08,556 Speaker 1: much easier to say this is the broad labor law 328 00:18:09,156 --> 00:18:12,596 Speaker 1: and deal with it, and that way the power is 329 00:18:12,756 --> 00:18:14,476 Speaker 1: in the hands of the workers. That's a kind of 330 00:18:14,476 --> 00:18:16,436 Speaker 1: structural reform we need in this country in order to 331 00:18:16,516 --> 00:18:19,516 Speaker 1: rebalance kind of the large problems we have with income 332 00:18:19,516 --> 00:18:22,916 Speaker 1: inequality and with workers being exploited at work. And I 333 00:18:22,956 --> 00:18:26,436 Speaker 1: guess the other side would say, unless that scares away business, right, 334 00:18:26,516 --> 00:18:28,836 Speaker 1: because we all want people to have jobs. And then 335 00:18:28,916 --> 00:18:30,756 Speaker 1: the question is, might it be the case that too 336 00:18:30,836 --> 00:18:35,476 Speaker 1: much regulation would create a disincentive for businesses to experiment 337 00:18:35,596 --> 00:18:38,996 Speaker 1: and to do new things. No one, even the companies, 338 00:18:38,996 --> 00:18:41,156 Speaker 1: don't admit that their interest is primarily in promoting the 339 00:18:41,156 --> 00:18:42,996 Speaker 1: interests of the companies. They would say, well, if our 340 00:18:43,036 --> 00:18:45,036 Speaker 1: company does well, we'll create new jobs and that will 341 00:18:45,076 --> 00:18:51,636 Speaker 1: make everybody better off. Yes, where at times of record employment, 342 00:18:51,716 --> 00:18:56,756 Speaker 1: if you will, record low unemployment, and yet at staggering 343 00:18:56,876 --> 00:19:00,516 Speaker 1: rates of income inequality and underemployment, And so it seems 344 00:19:00,556 --> 00:19:03,156 Speaker 1: like the perfect time to say, if you're going to 345 00:19:03,436 --> 00:19:06,036 Speaker 1: offer a job, it should be a real job, a 346 00:19:06,116 --> 00:19:10,476 Speaker 1: sustainable job where somebody can actually live off of having 347 00:19:10,676 --> 00:19:14,036 Speaker 1: just one job. And so I think the timing for 348 00:19:14,156 --> 00:19:16,476 Speaker 1: this is perfect. We also have and this is kind 349 00:19:16,476 --> 00:19:20,356 Speaker 1: of interesting to me. California is a large state. It 350 00:19:20,396 --> 00:19:22,916 Speaker 1: could be, you know, a country in its own However, 351 00:19:23,116 --> 00:19:25,676 Speaker 1: we also have a number of states who number one, 352 00:19:25,716 --> 00:19:29,276 Speaker 1: already had something like an ABC test on the books Massachusetts, 353 00:19:29,276 --> 00:19:32,596 Speaker 1: for example. We see New Jersey enforcing their ABC test 354 00:19:32,676 --> 00:19:37,076 Speaker 1: for unemployment insurance against ubern left their states who already 355 00:19:37,116 --> 00:19:39,636 Speaker 1: have had this but haven't really enforced it as much. 356 00:19:39,956 --> 00:19:41,756 Speaker 1: And then we have states who are going towards it. 357 00:19:42,276 --> 00:19:44,676 Speaker 1: We have the states like New York holding hearings on 358 00:19:45,156 --> 00:19:49,116 Speaker 1: what independent contractor misclassification law would look like if it 359 00:19:49,156 --> 00:19:52,156 Speaker 1: would be the ABC test. So although California is leading 360 00:19:52,236 --> 00:19:56,636 Speaker 1: the way, I anticipate a number of especially left leaning 361 00:19:56,756 --> 00:19:59,196 Speaker 1: states to be going in that direction. And of course 362 00:19:59,276 --> 00:20:02,596 Speaker 1: we have a situation where almost every presidential candidate on 363 00:20:02,716 --> 00:20:07,196 Speaker 1: the Democratic side has endorsed this approach and came out 364 00:20:07,276 --> 00:20:12,116 Speaker 1: supportive of California's AB five of reclassifying workers as employees 365 00:20:12,556 --> 00:20:15,756 Speaker 1: with the right to organize and with really re empowering 366 00:20:15,956 --> 00:20:19,516 Speaker 1: unions to research in the United States. So I think 367 00:20:19,556 --> 00:20:22,436 Speaker 1: the timing on this is perfect because a company can 368 00:20:22,556 --> 00:20:25,476 Speaker 1: try to avoid a California law for so long, but 369 00:20:26,276 --> 00:20:28,596 Speaker 1: operating on a level plane field is important. And the 370 00:20:28,676 --> 00:20:30,316 Speaker 1: last thing I'd say about this, and I think this 371 00:20:30,476 --> 00:20:32,196 Speaker 1: is really important. We heard from a lot of businesses 372 00:20:32,236 --> 00:20:34,796 Speaker 1: who are actually grateful for us doing this. And that's 373 00:20:34,836 --> 00:20:37,236 Speaker 1: because when you are a business that's operating by the 374 00:20:37,356 --> 00:20:40,276 Speaker 1: rules and by the rules that seem very obvious, and 375 00:20:40,356 --> 00:20:42,516 Speaker 1: you're undercut by a company that comes in and says, 376 00:20:42,596 --> 00:20:44,596 Speaker 1: I'm just going to be innovative, I'm going to hire 377 00:20:44,676 --> 00:20:46,436 Speaker 1: you by app and so I no longer have the 378 00:20:46,516 --> 00:20:49,916 Speaker 1: same cost as you do. Well, that's a competitive disadvantage 379 00:20:49,956 --> 00:20:53,196 Speaker 1: that hurts society, it hurts the state, it hurts the worker, 380 00:20:53,236 --> 00:20:55,476 Speaker 1: and it hurts the business that was planed by the rules. 381 00:20:55,876 --> 00:20:59,316 Speaker 1: And so it is time to treat everybody the same 382 00:20:59,396 --> 00:21:02,916 Speaker 1: and fairly. And I think that AB five helps us 383 00:21:02,956 --> 00:21:05,876 Speaker 1: do that. From over here on the other coast, we'll 384 00:21:05,916 --> 00:21:09,676 Speaker 1: watch your bill and your career with great interest and excitement. 385 00:21:09,716 --> 00:21:11,836 Speaker 1: So thank you very much for joining in. Good luck 386 00:21:11,876 --> 00:21:21,036 Speaker 1: with everything that you're doing. Thank you. Of course, not 387 00:21:21,276 --> 00:21:24,396 Speaker 1: everyone thinks that AB five is fair or that it's 388 00:21:24,396 --> 00:21:28,156 Speaker 1: a smart economic move. Uber Lyft and DoorDash have launched 389 00:21:28,236 --> 00:21:31,596 Speaker 1: a ninety million dollar campaign in support of a ballot 390 00:21:31,636 --> 00:21:35,876 Speaker 1: initiative that would ask California voters essentially to allow them 391 00:21:36,116 --> 00:21:38,756 Speaker 1: not to be covered by the law in exchange for 392 00:21:38,876 --> 00:21:43,276 Speaker 1: providing some improved conditions for their drivers. As part of 393 00:21:43,316 --> 00:21:46,396 Speaker 1: this measure, the companies are promising to provide lots of 394 00:21:46,476 --> 00:21:50,076 Speaker 1: their drivers with benefits they don't currently have, like minimum 395 00:21:50,116 --> 00:21:54,676 Speaker 1: wage standards and some healthcare stipends, without officially turning them 396 00:21:54,716 --> 00:21:59,196 Speaker 1: into employees. I spoke to Adrian Durban, a spokesperson for Lyft, 397 00:21:59,436 --> 00:22:01,916 Speaker 1: about what it would be like if all lift drivers 398 00:22:02,036 --> 00:22:05,836 Speaker 1: suddenly became employees rather than contractors, and why the companies 399 00:22:05,876 --> 00:22:09,716 Speaker 1: are so reluctant to let that happen. Adrian, I'm so 400 00:22:09,876 --> 00:22:12,796 Speaker 1: pleased that you were able to join us. Describe from 401 00:22:12,996 --> 00:22:18,036 Speaker 1: the perspective of Lift your employer just how disastrous is 402 00:22:18,156 --> 00:22:22,276 Speaker 1: AB five for your business model. Sure well, thanks so 403 00:22:22,396 --> 00:22:25,156 Speaker 1: much for having me. I appreciate the opportunity to be here. 404 00:22:25,876 --> 00:22:28,076 Speaker 1: You know, I think when we're talking about the issue 405 00:22:28,116 --> 00:22:31,116 Speaker 1: of AB five, it's important to take a step back 406 00:22:31,276 --> 00:22:34,556 Speaker 1: and think about what does the driver community on the 407 00:22:34,636 --> 00:22:38,236 Speaker 1: lift platform look like. Ninety one percent of drivers who 408 00:22:38,556 --> 00:22:41,436 Speaker 1: drive with Lift drive less than twenty hours per week, 409 00:22:41,876 --> 00:22:44,836 Speaker 1: and actually seventy six percent drive less than ten hours 410 00:22:44,916 --> 00:22:48,276 Speaker 1: per week. These are people who are using the platform 411 00:22:48,356 --> 00:22:51,636 Speaker 1: to earn extra income on a schedule that works for them. 412 00:22:51,676 --> 00:22:54,596 Speaker 1: A lot of people are they have other jobs and 413 00:22:54,636 --> 00:22:58,156 Speaker 1: they're earning extra income to supplement that or their students 414 00:22:58,356 --> 00:23:02,276 Speaker 1: or their caregivers or retirees, and they either aren't able 415 00:23:02,316 --> 00:23:04,756 Speaker 1: to work full time or have no interest in working 416 00:23:04,836 --> 00:23:07,676 Speaker 1: full time, so they're coming to lifts and other platforms 417 00:23:07,756 --> 00:23:10,156 Speaker 1: like it to earn extra money on a schedule that 418 00:23:10,196 --> 00:23:14,036 Speaker 1: works for them. And what they tell us overwhelmingly that 419 00:23:14,156 --> 00:23:16,476 Speaker 1: the most important thing to them, in addition to earning 420 00:23:16,916 --> 00:23:20,596 Speaker 1: income is that flexibility. So what we've been focused on 421 00:23:21,916 --> 00:23:26,676 Speaker 1: here in California is protecting that flexibility while strengthening the 422 00:23:26,796 --> 00:23:30,076 Speaker 1: platform and making it better for drivers in terms of 423 00:23:30,316 --> 00:23:36,196 Speaker 1: providing additional benefits, protections and guarantees for let's say the 424 00:23:36,236 --> 00:23:39,316 Speaker 1: seventy six percent of your drivers who drive for less 425 00:23:39,356 --> 00:23:41,956 Speaker 1: than ten hours a week. Yeah, what happens to them 426 00:23:42,596 --> 00:23:45,156 Speaker 1: if they are deemed to be employees? Is there any 427 00:23:45,196 --> 00:23:47,276 Speaker 1: reason they just can't continue to work those same hours 428 00:23:47,356 --> 00:23:50,116 Speaker 1: but just get different, different pan different benefits. Sure, I'm 429 00:23:50,156 --> 00:23:53,756 Speaker 1: glad you asked that question. So if ultimately drivers were 430 00:23:53,836 --> 00:23:56,996 Speaker 1: classified as employees, a couple of things would happen. First, 431 00:23:57,156 --> 00:24:00,116 Speaker 1: we wouldn't need nearly as many drivers as currently are 432 00:24:00,556 --> 00:24:03,796 Speaker 1: working on the platform, we would have to behave like 433 00:24:03,956 --> 00:24:07,956 Speaker 1: every other major employer that has employees for their workforce. 434 00:24:08,396 --> 00:24:12,076 Speaker 1: And what that means is drivers would be put on 435 00:24:12,556 --> 00:24:16,156 Speaker 1: set schedules, on shifts. And let me explain why that's 436 00:24:16,236 --> 00:24:17,916 Speaker 1: why that's the case. Yeah, why would you tell why 437 00:24:17,916 --> 00:24:19,916 Speaker 1: would you have to do that? That's the big question. Yeah. So, 438 00:24:20,076 --> 00:24:24,316 Speaker 1: under an employment model, drivers would earn would start earning 439 00:24:24,356 --> 00:24:26,436 Speaker 1: their wage from the moment they turn the app on 440 00:24:27,076 --> 00:24:29,996 Speaker 1: until they to the moment they turn the app off. Currently, 441 00:24:30,076 --> 00:24:32,916 Speaker 1: what happens is that drivers get paid during what we 442 00:24:32,996 --> 00:24:35,636 Speaker 1: call booked time, which is when they have they're on 443 00:24:35,716 --> 00:24:38,196 Speaker 1: their way to pick up a passenger, or they have 444 00:24:38,276 --> 00:24:40,996 Speaker 1: a passenger in the car. Under an employment model, they 445 00:24:40,996 --> 00:24:42,716 Speaker 1: would be paid for the entire time they have the 446 00:24:42,796 --> 00:24:45,396 Speaker 1: app on. So you can imagine why we would have 447 00:24:45,516 --> 00:24:48,876 Speaker 1: to put drivers onto shifts. For the same reason that 448 00:24:49,236 --> 00:24:52,276 Speaker 1: companies like Starbucks don't allow their baristas to just come 449 00:24:52,316 --> 00:24:54,756 Speaker 1: in and work whenever they feel like it, for however 450 00:24:54,876 --> 00:24:56,676 Speaker 1: long they feel like it. They need to match their 451 00:24:57,236 --> 00:25:00,476 Speaker 1: supply of workers to the demand that exists at a 452 00:25:00,516 --> 00:25:03,196 Speaker 1: particular time. So when Starbucks, obviously they have more barista's 453 00:25:03,236 --> 00:25:05,276 Speaker 1: working in the morning, when lots of people are buying coffee, 454 00:25:05,636 --> 00:25:07,716 Speaker 1: not so many in the late afternoon and evening when 455 00:25:07,756 --> 00:25:12,556 Speaker 1: people are not buying coffee, So we would be really 456 00:25:12,636 --> 00:25:16,156 Speaker 1: forced to implement a similar model. If we didn't do that, 457 00:25:16,316 --> 00:25:19,636 Speaker 1: you can imagine the situation where drivers would sign up 458 00:25:19,676 --> 00:25:22,916 Speaker 1: for as many apps as possible. Right now, many drivers 459 00:25:22,956 --> 00:25:25,196 Speaker 1: do work for multiple apps, and they can do that 460 00:25:25,236 --> 00:25:27,156 Speaker 1: at the same time. They can turn on Uber and 461 00:25:27,356 --> 00:25:30,156 Speaker 1: Lyft and DoorDash and just wait for the next ride 462 00:25:30,196 --> 00:25:32,516 Speaker 1: request to come in. Under an employment model, if you 463 00:25:32,596 --> 00:25:34,596 Speaker 1: were paying for the entire time they had the app on, 464 00:25:35,156 --> 00:25:38,676 Speaker 1: then there would be nothing to prevent somebody from turning 465 00:25:38,716 --> 00:25:40,716 Speaker 1: on all the apps, going to an area where there 466 00:25:40,796 --> 00:25:44,516 Speaker 1: wasn't going to be any demand, and getting paid wages 467 00:25:44,796 --> 00:25:46,996 Speaker 1: from each of those companies while not doing any work. 468 00:25:47,476 --> 00:25:50,116 Speaker 1: So you can understand why that wouldn't make sense. So 469 00:25:50,596 --> 00:25:52,996 Speaker 1: under an employment model, we would have no choice but 470 00:25:53,196 --> 00:25:56,796 Speaker 1: to put drivers on scheduled shifts, which is something they've 471 00:25:56,916 --> 00:26:01,476 Speaker 1: told us overwhelmingly they oppose. So I hear what you're saying, 472 00:26:01,676 --> 00:26:04,236 Speaker 1: and certainly from the standpoint of your seventy six percent 473 00:26:04,236 --> 00:26:06,556 Speaker 1: of drivers who worked through than ten hours a week 474 00:26:06,916 --> 00:26:09,316 Speaker 1: for them, if many of them were no longer are 475 00:26:09,436 --> 00:26:12,236 Speaker 1: working according to their own schedules, there might be a 476 00:26:12,276 --> 00:26:15,836 Speaker 1: significant change for them. What about from the company's perspective, however, 477 00:26:15,996 --> 00:26:18,716 Speaker 1: I mean, just because seventy six percent of your drivers 478 00:26:18,756 --> 00:26:20,316 Speaker 1: work through then ten hours a week, doesn't mean that 479 00:26:20,756 --> 00:26:23,916 Speaker 1: seventy six percent of the rides that you organize are 480 00:26:24,036 --> 00:26:25,956 Speaker 1: by those drivers. In fact, it must be the other 481 00:26:26,356 --> 00:26:30,676 Speaker 1: the other way around. What what percentage of the rides 482 00:26:30,756 --> 00:26:34,156 Speaker 1: that you arrange are being given by drivers who work 483 00:26:34,316 --> 00:26:37,796 Speaker 1: more than twenty hours a week. I don't have that data. 484 00:26:37,796 --> 00:26:40,876 Speaker 1: I don't think we disclose that data. You're right, very important. 485 00:26:40,876 --> 00:26:43,036 Speaker 1: It would be pretty important for understanding the question. I mean, 486 00:26:43,036 --> 00:26:45,956 Speaker 1: because you can imagine a person on the other side saying, look, 487 00:26:45,996 --> 00:26:48,316 Speaker 1: you're you're right. We concede the point that for the 488 00:26:48,396 --> 00:26:50,036 Speaker 1: ten hours a week drivers, this may not be what 489 00:26:50,116 --> 00:26:53,356 Speaker 1: they want, But we care more about the drivers who 490 00:26:53,396 --> 00:26:57,156 Speaker 1: are effectively treating their job as a you know, with 491 00:26:57,396 --> 00:26:59,956 Speaker 1: with lift or with uber or with or dash as 492 00:27:00,036 --> 00:27:02,316 Speaker 1: a effectively as a full time job, and we're trying 493 00:27:02,316 --> 00:27:04,596 Speaker 1: to improve things from them, even admitting we're doing it 494 00:27:04,636 --> 00:27:06,836 Speaker 1: at the expense of the part time employees, because after all, 495 00:27:06,876 --> 00:27:09,796 Speaker 1: that's what you know what labor offen and advocates for. 496 00:27:10,036 --> 00:27:12,676 Speaker 1: You know, labor unions are often in favor of improving 497 00:27:12,756 --> 00:27:14,996 Speaker 1: the standards of living for people who are full time 498 00:27:15,036 --> 00:27:17,556 Speaker 1: employees at the expense of part time employees, and I 499 00:27:17,596 --> 00:27:19,596 Speaker 1: think they usually are willing to not always, they're usually 500 00:27:19,596 --> 00:27:22,036 Speaker 1: willing to be open about that. What I can tell 501 00:27:22,076 --> 00:27:24,396 Speaker 1: you is that even among the drivers who work more 502 00:27:24,476 --> 00:27:26,436 Speaker 1: than twenty hours a week, they still tell us that 503 00:27:26,476 --> 00:27:29,876 Speaker 1: they value the flexibility quite a bit, in fact, more 504 00:27:29,916 --> 00:27:33,796 Speaker 1: than anything other than their income. So even if you're 505 00:27:33,836 --> 00:27:36,196 Speaker 1: working full time, one of the things that they love 506 00:27:36,196 --> 00:27:38,796 Speaker 1: about this type of work is that, you know, if 507 00:27:38,836 --> 00:27:41,956 Speaker 1: you have if you have children and you need to 508 00:27:41,996 --> 00:27:43,436 Speaker 1: take your kid to the doctor, you don't need to 509 00:27:43,476 --> 00:27:46,396 Speaker 1: get permission from your boss to take time off. If 510 00:27:46,436 --> 00:27:49,356 Speaker 1: you decide you want to watch a World Series game 511 00:27:49,876 --> 00:27:51,836 Speaker 1: because your favorite team is in the World Series, you 512 00:27:51,916 --> 00:27:54,356 Speaker 1: can decide I'm not going to work at that time. 513 00:27:55,036 --> 00:27:57,996 Speaker 1: So even the drivers who are working more than twenty 514 00:27:58,036 --> 00:28:03,276 Speaker 1: hours a week value the flexibility and the ability to 515 00:28:03,476 --> 00:28:05,996 Speaker 1: set their schedule, even if they're working, you know, as 516 00:28:06,036 --> 00:28:08,796 Speaker 1: you said, more than twenty hours a week. So what 517 00:28:08,876 --> 00:28:12,956 Speaker 1: we're what they've also told us and this goes for drivers, 518 00:28:13,196 --> 00:28:15,596 Speaker 1: no matter how many hours they work. They are looking 519 00:28:15,636 --> 00:28:19,916 Speaker 1: for additional protections and benefits, and that's what we've put 520 00:28:19,996 --> 00:28:22,796 Speaker 1: on the table here in California. So we've proposed a 521 00:28:22,876 --> 00:28:26,756 Speaker 1: minimum wage floor so that they are guaranteed that they'll 522 00:28:26,756 --> 00:28:29,596 Speaker 1: earn at least a certain amount every hour that they 523 00:28:29,636 --> 00:28:32,516 Speaker 1: are working. We are also putting on the table a 524 00:28:32,636 --> 00:28:35,956 Speaker 1: healthcare benefit, and then on top of the healthcare, we're 525 00:28:35,956 --> 00:28:42,636 Speaker 1: also putting in place other benefits, so occupational accident insurance coverage, 526 00:28:42,676 --> 00:28:44,716 Speaker 1: so if you get injured on the job, you'll be 527 00:28:44,836 --> 00:28:47,836 Speaker 1: compensated for that, which is not something that they currently exists, 528 00:28:47,836 --> 00:28:50,596 Speaker 1: and we recognize that that's that's an issue for drivers, 529 00:28:50,676 --> 00:28:53,516 Speaker 1: so we've put that on the table. And you're proposing 530 00:28:53,596 --> 00:28:57,636 Speaker 1: this in the form since the California legislature already passed 531 00:28:57,836 --> 00:29:00,796 Speaker 1: eighty five and it's been signed into law. You're proposing 532 00:29:00,836 --> 00:29:04,236 Speaker 1: this as a referendum that would seek essentially an exemption 533 00:29:04,356 --> 00:29:07,956 Speaker 1: for participating companies from the law that was passed by 534 00:29:08,156 --> 00:29:11,356 Speaker 1: the legislature. Am I get that right? Yeah, So it's 535 00:29:12,156 --> 00:29:15,356 Speaker 1: what's referred to as a ballot initiative, and we are 536 00:29:15,396 --> 00:29:19,276 Speaker 1: in the process right now of getting the title in summary, 537 00:29:19,716 --> 00:29:21,556 Speaker 1: which is what they call it, and that will happen 538 00:29:21,636 --> 00:29:23,636 Speaker 1: sometime before the end of the year, and then we 539 00:29:23,716 --> 00:29:26,076 Speaker 1: would go out and collect signatures to qualify for the 540 00:29:26,116 --> 00:29:28,676 Speaker 1: ballot in November of twenty twenty. I would say that 541 00:29:28,756 --> 00:29:30,556 Speaker 1: there's a bit of a distinction. I wouldn't call it 542 00:29:30,676 --> 00:29:33,916 Speaker 1: an exemption from AB five. There's actually quite a few industries. 543 00:29:33,996 --> 00:29:37,956 Speaker 1: More than fifty industries were actually exempted outright from AB five. 544 00:29:38,476 --> 00:29:40,596 Speaker 1: What we are saying is, let's create a new model. 545 00:29:41,076 --> 00:29:43,036 Speaker 1: The initiative that we are going to put on the 546 00:29:43,116 --> 00:29:47,796 Speaker 1: ballot is based on feedback that we've received from thousands 547 00:29:47,836 --> 00:29:50,916 Speaker 1: of drivers, and this is across multiple platforms about Okay, 548 00:29:51,236 --> 00:29:53,756 Speaker 1: what do you like about this work and what would 549 00:29:53,756 --> 00:29:56,196 Speaker 1: you like to see improved? And again, what they tell 550 00:29:56,276 --> 00:29:59,356 Speaker 1: us overwhelmingly that what they love about it is the flexibility, 551 00:29:59,876 --> 00:30:02,796 Speaker 1: which goes out the window under an employment model. But 552 00:30:03,076 --> 00:30:06,756 Speaker 1: they want they want more guarantees around pay, they want healthcare, 553 00:30:07,076 --> 00:30:11,716 Speaker 1: they want injury protect action, they want discrimination protection, they 554 00:30:11,796 --> 00:30:15,876 Speaker 1: want an ability to appeal if they are deactivated by 555 00:30:16,076 --> 00:30:18,476 Speaker 1: by the companies for whatever reason. Those are all the 556 00:30:18,596 --> 00:30:21,196 Speaker 1: things that are included in this ballad initiative and again, 557 00:30:21,236 --> 00:30:23,356 Speaker 1: it's based on the feed the feedback that we got 558 00:30:23,396 --> 00:30:26,036 Speaker 1: from them. May I just ask, so you know, what's 559 00:30:26,076 --> 00:30:30,036 Speaker 1: fascinating to me is clearly somebody who is working a 560 00:30:30,156 --> 00:30:32,636 Speaker 1: relatively small number of hours is going to value flexibility, 561 00:30:32,676 --> 00:30:35,396 Speaker 1: and even someone's working a lot of hours unquestionably will 562 00:30:35,396 --> 00:30:39,156 Speaker 1: get some benefit out of the fact of work our flexibility. 563 00:30:39,556 --> 00:30:42,316 Speaker 1: I assume though, that the more of your income you 564 00:30:42,476 --> 00:30:47,076 Speaker 1: rely on a ride sharing app to earn, the more 565 00:30:47,196 --> 00:30:49,796 Speaker 1: that your flexibility is constrained by when there are actually 566 00:30:50,036 --> 00:30:52,156 Speaker 1: rides available out there. You might say, you know, in 567 00:30:52,316 --> 00:30:54,756 Speaker 1: my perfect preferences to work between two and five in 568 00:30:54,796 --> 00:30:56,676 Speaker 1: the morning, but there just aren't that many rides out 569 00:30:56,716 --> 00:30:59,036 Speaker 1: there relative to cars, so I'm not going to work 570 00:30:59,116 --> 00:31:01,676 Speaker 1: those hours. So I guess what I'm wondering is what 571 00:31:01,796 --> 00:31:06,836 Speaker 1: would you say to supporters of the bill who would say, yeah, 572 00:31:06,916 --> 00:31:11,316 Speaker 1: we recognize that there's some sacrifice of flexibility, but in 573 00:31:11,636 --> 00:31:16,796 Speaker 1: an increasingly gig based economy, as more and more companies 574 00:31:16,996 --> 00:31:21,716 Speaker 1: come up with models like this, effectively, the results of 575 00:31:21,916 --> 00:31:26,796 Speaker 1: this this new disruptive employment model are to leave people 576 00:31:27,196 --> 00:31:31,236 Speaker 1: without the kinds of protections that are traditionally afforded to 577 00:31:31,996 --> 00:31:35,596 Speaker 1: to full time employees. I mean that's like, that's not 578 00:31:35,716 --> 00:31:38,236 Speaker 1: I'm trying to describe an argument that's the most reasonable argument, 579 00:31:38,316 --> 00:31:42,276 Speaker 1: not an emotionally driven argument, a rational logical argument that 580 00:31:42,516 --> 00:31:46,756 Speaker 1: that says, you know, look, flexibility will be a cost. 581 00:31:46,876 --> 00:31:50,796 Speaker 1: We acknowledge that, but the benefit outweighs the cost. Yeah, 582 00:31:50,876 --> 00:31:53,036 Speaker 1: And what I would say to that is that is 583 00:31:53,076 --> 00:31:55,676 Speaker 1: that we disagree that it outweighs the cost. When you 584 00:31:55,756 --> 00:31:59,436 Speaker 1: ask drivers what matters, they tell us flexibility. I would 585 00:31:59,436 --> 00:32:02,396 Speaker 1: also say that the under the proposal that we put forward, 586 00:32:02,796 --> 00:32:05,156 Speaker 1: the more you work, the more the more benefits would 587 00:32:05,156 --> 00:32:08,236 Speaker 1: accrue to you. So someone who works less than ten 588 00:32:08,276 --> 00:32:10,276 Speaker 1: hours a week is not going to qualify for healthcare, 589 00:32:10,676 --> 00:32:12,796 Speaker 1: but someone who works more than fifteen or twenty five 590 00:32:12,836 --> 00:32:15,956 Speaker 1: hours a week will, So you'd get more. The benefits 591 00:32:16,196 --> 00:32:19,276 Speaker 1: kind of scale depending on how much you're actually you're 592 00:32:19,276 --> 00:32:24,716 Speaker 1: actually working. So we've tried to devise a proposal that recognizes, 593 00:32:25,316 --> 00:32:26,876 Speaker 1: you know, some of the points that you're making, which 594 00:32:26,916 --> 00:32:29,436 Speaker 1: is that you know, if you drive more, then you 595 00:32:29,476 --> 00:32:31,516 Speaker 1: should you should get more. And that's that's what this 596 00:32:31,636 --> 00:32:36,876 Speaker 1: proposal actually does. Let's say you don't win, you know, 597 00:32:36,956 --> 00:32:39,196 Speaker 1: you get this, you get the signatures it goes on 598 00:32:39,316 --> 00:32:42,436 Speaker 1: the ballot and it doesn't garner a majority of California voters. 599 00:32:42,956 --> 00:32:45,036 Speaker 1: What will that mean in practice? I mean, as you said, 600 00:32:45,076 --> 00:32:47,636 Speaker 1: you'll have to move to more of an employment model. 601 00:32:48,596 --> 00:32:52,436 Speaker 1: Would would Lift still continue to do business in California? Um? Yes, 602 00:32:52,676 --> 00:32:54,996 Speaker 1: I mean, let's let's be clear at one thing. What 603 00:32:55,236 --> 00:33:00,916 Speaker 1: what AB five does is not to automatically reclassify drivers 604 00:33:00,916 --> 00:33:03,516 Speaker 1: as employees. What it is is it's a It's it's 605 00:33:03,636 --> 00:33:08,076 Speaker 1: legislation that codifies and extends the so called ABC tests 606 00:33:08,196 --> 00:33:11,836 Speaker 1: for contractor classification. And that's actually been been an effect 607 00:33:11,876 --> 00:33:15,236 Speaker 1: in California since April of last year with the Dynamics 608 00:33:15,396 --> 00:33:18,716 Speaker 1: Supreme Court ruling. So, you know, I think there's a 609 00:33:18,756 --> 00:33:21,436 Speaker 1: misperception out there about what AB five actually does because 610 00:33:21,476 --> 00:33:25,156 Speaker 1: of the way it's been characterized in the media and elsewhere, 611 00:33:25,276 --> 00:33:27,236 Speaker 1: and that people often refer to it as the bill 612 00:33:27,316 --> 00:33:30,956 Speaker 1: that makes Lift and Uber drivers employees. It doesn't do that. 613 00:33:31,196 --> 00:33:34,276 Speaker 1: It puts in place a new and kind of more 614 00:33:34,596 --> 00:33:38,796 Speaker 1: more stringent test to decide whether somebody is an employee 615 00:33:38,876 --> 00:33:41,476 Speaker 1: or a contractor. But under that test, under that test, 616 00:33:41,556 --> 00:33:43,516 Speaker 1: I mean, we could walk through the elements, but is 617 00:33:43,516 --> 00:33:47,276 Speaker 1: it would it be your your position that your drivers 618 00:33:47,356 --> 00:33:50,436 Speaker 1: do qualify as independent contractors under that test. I mean, 619 00:33:50,476 --> 00:33:55,516 Speaker 1: the three elements are basically degree of control of the employee, UM, 620 00:33:55,836 --> 00:33:59,676 Speaker 1: whether the employee is working outside the main business of 621 00:33:59,876 --> 00:34:05,556 Speaker 1: the company, and whether they're in a customarily independent, you know, 622 00:34:05,996 --> 00:34:08,716 Speaker 1: line of work. And so I can imagine arguments on 623 00:34:08,956 --> 00:34:11,276 Speaker 1: all three of those things. But under the under the 624 00:34:11,356 --> 00:34:14,476 Speaker 1: law and under the state Supreme Court decision, you guys 625 00:34:14,516 --> 00:34:17,356 Speaker 1: would have to prove that you met all three of 626 00:34:17,396 --> 00:34:19,636 Speaker 1: those things in order for your drivers not to QUALFI 627 00:34:19,876 --> 00:34:20,796 Speaker 1: is that what you would do? You would take it 628 00:34:20,796 --> 00:34:22,396 Speaker 1: to accord and try to make that argument. Yeah. Well, 629 00:34:23,076 --> 00:34:24,996 Speaker 1: I think it's important to point out that the ABC 630 00:34:25,156 --> 00:34:28,396 Speaker 1: test does actually exist in other states where we operate successfully. 631 00:34:28,556 --> 00:34:32,756 Speaker 1: So again, it doesn't just because AB five becomes law 632 00:34:33,276 --> 00:34:38,756 Speaker 1: doesn't immediately mean that drivers are classified as employees fight however, 633 00:34:38,996 --> 00:34:43,676 Speaker 1: I think that. Yeah, but we also are recognizing that 634 00:34:44,676 --> 00:34:47,876 Speaker 1: the status quo is not sufficient, and we want to 635 00:34:47,996 --> 00:34:52,076 Speaker 1: make things better. We want to strengthen the protections for drivers. 636 00:34:52,156 --> 00:34:56,276 Speaker 1: We want to add benefits and minimum wage guarantees. I mean, 637 00:34:57,036 --> 00:35:01,396 Speaker 1: we think there's an opportunity here to modernize labor laws 638 00:35:01,476 --> 00:35:04,436 Speaker 1: that we're you know, basically written decades ago, and on 639 00:35:04,556 --> 00:35:07,316 Speaker 1: our current system we have it's a binary choice. You're 640 00:35:07,356 --> 00:35:11,276 Speaker 1: either an employee or you're an independent contractor. But we're 641 00:35:11,316 --> 00:35:14,676 Speaker 1: trying to create is a new model that protects the 642 00:35:14,756 --> 00:35:18,476 Speaker 1: independent status and the flexibility, but provides many of the 643 00:35:18,556 --> 00:35:21,636 Speaker 1: benefits that employees get. There are many other countries that 644 00:35:21,836 --> 00:35:25,196 Speaker 1: have a third model, and we see no reason why 645 00:35:26,396 --> 00:35:28,076 Speaker 1: why we couldn't do so here. We think that the 646 00:35:28,116 --> 00:35:31,636 Speaker 1: proposal we've put on the table really strikes strikes the 647 00:35:31,756 --> 00:35:34,796 Speaker 1: right balance between protecting what's what's so great about this 648 00:35:34,876 --> 00:35:37,996 Speaker 1: work for so many people while providing additional guarantees and 649 00:35:38,116 --> 00:35:41,716 Speaker 1: benefits and protections. Well, I'm super grateful to Adrian for 650 00:35:41,796 --> 00:35:45,196 Speaker 1: your time and for your explanation, and I'm sure we'll 651 00:35:45,196 --> 00:35:46,836 Speaker 1: be hearing much more about the story going forward. So 652 00:35:46,916 --> 00:35:48,756 Speaker 1: I really want to thank you for presenting your point 653 00:35:48,756 --> 00:35:58,156 Speaker 1: of view. Thanks No who's right ultimately about the utility 654 00:35:58,196 --> 00:36:02,156 Speaker 1: and value of a B five? After listening to Lorina Gonzalez, 655 00:36:02,476 --> 00:36:06,316 Speaker 1: it's pretty hard not to feel that many drivers who 656 00:36:06,396 --> 00:36:09,436 Speaker 1: make their living driving for Uber or Lift or door 657 00:36:09,516 --> 00:36:11,836 Speaker 1: Dash would have a lot to gain if they were 658 00:36:11,876 --> 00:36:16,436 Speaker 1: actually treated as employees who got benefits on the other hand, 659 00:36:16,556 --> 00:36:20,556 Speaker 1: the Lift spokesman Adrian Durban also makes a plausible case 660 00:36:20,796 --> 00:36:23,396 Speaker 1: that there are people who do not drive full time 661 00:36:23,636 --> 00:36:26,796 Speaker 1: for the companies who might no longer be able to 662 00:36:26,956 --> 00:36:31,596 Speaker 1: enjoy the benefits of a part time gig job. Balancing 663 00:36:31,636 --> 00:36:35,796 Speaker 1: those interests, the interests of the full time drivers against 664 00:36:35,876 --> 00:36:38,956 Speaker 1: those of part time drivers is not a simple matter, 665 00:36:39,556 --> 00:36:43,756 Speaker 1: But that's why we have legislatures. The California legislature has 666 00:36:43,796 --> 00:36:46,956 Speaker 1: passed a law that clearly opts to prefer the full 667 00:36:46,996 --> 00:36:50,396 Speaker 1: time drivers and make sure that they become protected employees 668 00:36:50,836 --> 00:36:54,356 Speaker 1: over the interests of part time drivers. Now, what remains 669 00:36:54,396 --> 00:36:57,636 Speaker 1: to be seen is how the public in California will 670 00:36:57,716 --> 00:37:00,956 Speaker 1: react when it's asked on a ballot initiative whether the 671 00:37:01,116 --> 00:37:04,596 Speaker 1: law should be changed. That's something worth watching closely in 672 00:37:04,636 --> 00:37:06,596 Speaker 1: the future. Not only will it tell us a lot 673 00:37:06,636 --> 00:37:08,756 Speaker 1: about this debate, but it will probably tell us something 674 00:37:09,156 --> 00:37:12,516 Speaker 1: very important about the future of the gig economy nationwide. 675 00:37:18,756 --> 00:37:28,396 Speaker 1: And now are sound of the week. Those are people 676 00:37:28,556 --> 00:37:31,036 Speaker 1: rallying in front of the Supreme Court in Washington, DC 677 00:37:31,316 --> 00:37:35,436 Speaker 1: this week on the occasion of the Justice's consideration of 678 00:37:35,556 --> 00:37:39,836 Speaker 1: the legal future of DHAKA, the deferred Action for childhood 679 00:37:39,916 --> 00:37:44,196 Speaker 1: Arrivals program. You all know that program. DACA was announced 680 00:37:44,396 --> 00:37:48,196 Speaker 1: first under President Barack Obama, and its essential goal was 681 00:37:48,236 --> 00:37:50,916 Speaker 1: to make sure that people who were brought to United 682 00:37:50,956 --> 00:37:54,516 Speaker 1: States as children by parents who might have become undocumented, 683 00:37:54,556 --> 00:37:57,796 Speaker 1: and who themselves became undocumented and therefore unable to stay 684 00:37:57,796 --> 00:38:00,476 Speaker 1: in the country legally would be allowed to remain in 685 00:38:00,516 --> 00:38:03,436 Speaker 1: the country and even allowed to work. Those are the 686 00:38:03,476 --> 00:38:08,156 Speaker 1: people we've come to call dreamers. During President Obama's administration, 687 00:38:08,676 --> 00:38:11,836 Speaker 1: a very similar program to DACA, one that was aimed 688 00:38:11,836 --> 00:38:15,556 Speaker 1: at parents, was challenged in court and ultimately struck down 689 00:38:15,876 --> 00:38:18,516 Speaker 1: by the US Court of Appeals for the Fifth Circuit 690 00:38:19,156 --> 00:38:21,516 Speaker 1: that went to the Supreme Court that time, and the 691 00:38:21,596 --> 00:38:24,916 Speaker 1: Supreme Court split four to four after the untimely death 692 00:38:25,116 --> 00:38:29,036 Speaker 1: of Justice antonin Scalia at the Supreme Court, a tie 693 00:38:29,196 --> 00:38:31,476 Speaker 1: goes to the decision below, So the four to four 694 00:38:31,556 --> 00:38:34,516 Speaker 1: decision left in place the decision that had been made 695 00:38:34,556 --> 00:38:38,196 Speaker 1: by the Court of Appeals striking down the parent version 696 00:38:38,436 --> 00:38:43,596 Speaker 1: of DACA. When Donald Trump became president, he expressed in 697 00:38:43,676 --> 00:38:46,676 Speaker 1: a tweet, of course, that it was a great idea 698 00:38:46,876 --> 00:38:50,196 Speaker 1: for dreamers to be able to stay in the United States. Nevertheless, 699 00:38:50,396 --> 00:38:55,636 Speaker 1: he issued an order putting an end to the DACA program. Why, well, 700 00:38:56,116 --> 00:39:00,036 Speaker 1: his order said the DACA program was unlawful and would 701 00:39:00,076 --> 00:39:05,076 Speaker 1: not be able to be defended in court. Of course, immediately, 702 00:39:05,396 --> 00:39:08,636 Speaker 1: DACA advocates went back to the courts and they challenged 703 00:39:08,676 --> 00:39:12,836 Speaker 1: Donald Trump's suspension of the order. Sure enough, a lower 704 00:39:12,916 --> 00:39:15,716 Speaker 1: court and then a quarter of appeals held that Donald 705 00:39:15,756 --> 00:39:20,276 Speaker 1: Trump was not able to reverse Barack Obama's decision. And 706 00:39:20,436 --> 00:39:23,716 Speaker 1: that's the issue before the Supreme Court. Now, Now, if 707 00:39:23,756 --> 00:39:26,996 Speaker 1: this all sounds legal and confusing, it is, and here's why. 708 00:39:27,956 --> 00:39:31,076 Speaker 1: Logically speaking, what you would expect is that if a 709 00:39:31,236 --> 00:39:34,436 Speaker 1: president like Barack Obama has the power to create a 710 00:39:34,516 --> 00:39:38,516 Speaker 1: program like DOCCA, then the next president, Donald Trump, should 711 00:39:38,516 --> 00:39:42,396 Speaker 1: have the same power to end the program. In order 712 00:39:42,476 --> 00:39:46,956 Speaker 1: to avoid that legal argument, those who supported DOCA told 713 00:39:47,036 --> 00:39:49,636 Speaker 1: the courts that Donald Trump had not done a sufficient 714 00:39:49,756 --> 00:39:54,836 Speaker 1: job of explaining his decision. If they say Trump had 715 00:39:54,876 --> 00:39:57,676 Speaker 1: simply announced that he didn't like the DOCCA program because 716 00:39:57,716 --> 00:39:59,316 Speaker 1: he thought the dreamers shouldn't be able to stay in 717 00:39:59,356 --> 00:40:02,636 Speaker 1: the United States, that would have been permissible. But they 718 00:40:02,756 --> 00:40:06,436 Speaker 1: argued in court because Trump insisted that he had no 719 00:40:06,636 --> 00:40:09,516 Speaker 1: choice but to rescind the program because it violated the law. 720 00:40:10,276 --> 00:40:14,036 Speaker 1: He was stating an untrue fact, because although the Supreme 721 00:40:14,116 --> 00:40:17,716 Speaker 1: Court had indeed said that a similar program that had 722 00:40:17,756 --> 00:40:20,516 Speaker 1: been struck down by the Court of Appeals would remain 723 00:40:20,636 --> 00:40:25,156 Speaker 1: struck down, the Supreme Court had not absolutely foreclosed the 724 00:40:25,316 --> 00:40:30,236 Speaker 1: legality of the DACA program. What will the justices do 725 00:40:30,756 --> 00:40:35,156 Speaker 1: with that ruling? At oral argument, it sure sounded like 726 00:40:35,276 --> 00:40:37,996 Speaker 1: there were five votes to support Donald Trump's decision to 727 00:40:38,116 --> 00:40:42,836 Speaker 1: rescind DACA. Crucially, the four four split that the Court 728 00:40:42,916 --> 00:40:45,516 Speaker 1: had reached in reviewing the Court of Appeals decisions several 729 00:40:45,596 --> 00:40:50,836 Speaker 1: years ago almost certainly included Chief Justice John Roberts on 730 00:40:50,996 --> 00:40:53,236 Speaker 1: the side of the people saying that the parent version 731 00:40:53,316 --> 00:40:56,516 Speaker 1: of DACA was unlawful. We can't say that with one 732 00:40:56,596 --> 00:40:59,316 Speaker 1: hundred percent certainty, because in a four four decision, the 733 00:40:59,436 --> 00:41:04,196 Speaker 1: justices don't necessarily state who voted which way. But it's 734 00:41:04,316 --> 00:41:06,596 Speaker 1: almost certain that the four liberals would have voted to 735 00:41:06,716 --> 00:41:09,956 Speaker 1: say that Barack Obama had the right to shudaka, and 736 00:41:10,076 --> 00:41:13,996 Speaker 1: the four conservatives would have said that he didn't. Consequently, 737 00:41:14,396 --> 00:41:17,396 Speaker 1: Chief Justice Roberts, who is essentially the swing vote these days, 738 00:41:17,836 --> 00:41:21,116 Speaker 1: is basically likely to be the swing vote here, and 739 00:41:21,236 --> 00:41:24,676 Speaker 1: it seems relatively likely that he's going to vote to 740 00:41:24,876 --> 00:41:28,676 Speaker 1: uphold Donald Trump's decision. If the Supreme Court does that, 741 00:41:28,876 --> 00:41:32,316 Speaker 1: it will create a legal situation in which Dreamers will 742 00:41:32,436 --> 00:41:36,436 Speaker 1: actually stand the risk of being deported from the United States. 743 00:41:37,236 --> 00:41:41,196 Speaker 1: Of course, Donald Trump could go easy on enforcement, or 744 00:41:41,636 --> 00:41:44,916 Speaker 1: it's conceivable he could reach some kind of a compromise 745 00:41:45,116 --> 00:41:48,716 Speaker 1: where he allows Dreamers to remain. The difficulty is that 746 00:41:48,836 --> 00:41:51,156 Speaker 1: in an election season, it will be very hard for 747 00:41:51,236 --> 00:41:54,116 Speaker 1: Trump to take a stand other than a strongly anti 748 00:41:54,236 --> 00:41:58,996 Speaker 1: immigrant stand, and at a time when Congress is considering 749 00:41:59,116 --> 00:42:03,196 Speaker 1: his impeachment, it is vanishingly unlikely that he would reach 750 00:42:03,316 --> 00:42:08,876 Speaker 1: a legislative compromise over the question of DHAKA. All this 751 00:42:09,196 --> 00:42:13,236 Speaker 1: means that we're headed for a genuinely sad and worrisome 752 00:42:13,516 --> 00:42:18,196 Speaker 1: moment for Dreamers. Ultimately, their best hope may be that 753 00:42:18,356 --> 00:42:21,796 Speaker 1: Donald Trump is not reelected and that a new president 754 00:42:22,596 --> 00:42:27,476 Speaker 1: readopts some version of DACA. But here's the twist. Depending 755 00:42:27,556 --> 00:42:30,916 Speaker 1: on how the Supreme Court decides this case, it might 756 00:42:31,436 --> 00:42:36,836 Speaker 1: actually imply or even hold that no president has the 757 00:42:36,916 --> 00:42:41,836 Speaker 1: authority to adopt the DCA program at all. The devil 758 00:42:41,956 --> 00:42:44,716 Speaker 1: is in the details. So when the Supreme Court decides 759 00:42:44,796 --> 00:42:46,796 Speaker 1: this case, we're going to have to dig deep read 760 00:42:46,836 --> 00:42:50,196 Speaker 1: the opinion and try to determine whether, under its logic, 761 00:42:50,436 --> 00:42:53,916 Speaker 1: a democratic president in the future could reissue the DOCCA 762 00:42:53,996 --> 00:42:57,956 Speaker 1: program in some new form. I promise you that when 763 00:42:58,036 --> 00:43:00,476 Speaker 1: that happens, you'll hear about it on your Sound of 764 00:43:00,516 --> 00:43:07,476 Speaker 1: the Week. Deep Background is brought to you by Pushkin Industries. 765 00:43:07,756 --> 00:43:10,476 Speaker 1: Our producer is Lydia jenne Hot, with engineering by Jason 766 00:43:10,556 --> 00:43:14,716 Speaker 1: Gambrel and Jason Roskowski. Our showrunner is Sophie mckibbon. Our 767 00:43:14,756 --> 00:43:17,716 Speaker 1: theme music is composed by Luis GERA special thanks to 768 00:43:17,756 --> 00:43:21,316 Speaker 1: the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. 769 00:43:21,756 --> 00:43:23,956 Speaker 1: I'm Noah Feldman. You can follow me on Twitter at 770 00:43:24,076 --> 00:43:26,956 Speaker 1: Noah R. Feldman. This is Deep Background.