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Court Overturns Prop 22, California’s Gig Worker Classification Law

On August 25, the Alameda County Superior Court in California declared that Proposition 22 (better known as Prop 22) violated the state’s constitution, overturning it and potentially putting a portion of the state’s gig work industry in peril. The controversial California ballot measure designated app-based gig workers like rideshare and food delivery drivers as independent contractors, meaning that the companies they ostensibly work for would not have to provide a minimum wage, health insurance, unemployment, sick leave or other benefits. Because the initiative was a ballot measure, the court found the law restricted the state legislature’s ability to regulate compensation rules, and said the measure also illegally prevented workers from collective bargaining and unionization. However, this ruling does not mean that gig workers will automatically be considered employees, as no previous law mandated that classification.

Before Prop 22’s passage in November 2020, California passed AB 5 in May 2019, which instituted a more rigorous test to determine whether workers were employees or independent contractors: if “the person is free from the control and direction of the hiring entity in connection with the performance of the work,” the work was outside the company’s usual business, and if the worker “customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.”

Rideshare companies like Uber and Lyft essentially ignored AB 5 and poured $224 million into fighting for Prop 22, making it “the most expensive ballot measure in California history,” according to the Los Angeles Times. The measure passed with around 59% of the vote.

In a small concession for workers, Prop 22 did provide for a health insurance stipend, but an August 2021 UC Berkeley Labor Center survey of 500 drivers showed that only around 10% of workers were receiving it, and 40% had not heard about it at all. Since work hours are only defined by the time spent driving with a passenger, others do not work the required 15 hours per week on one app to qualify for the stipend. These and other factors prompted drivers and the Service Employees International Union (SEIU) to sue the state seeking to overturn the law.

For now, the Superior Court ruling will likely not change much for gig workers in California, as Uber and other companies have announced their intention to challenge it in higher courts and may ignore any of its other legal implications, leaving everyone involved with a shaky status quo: an overturned law that is effectively still being followed.

As Risk Management wrote in May, one danger of the continuing ambiguity surrounding gig worker classification is misclassifying workers, which can lead to heavy fines or lawsuits. For example, in January 2020, D.C.-based contractor Power Design Inc. agreed to pay $2.5 million for misclassifying 500 workers as independent contractors rather than employees. In August, food delivery app company Postmates settled with the city of Seattle for nearly $1 million for violating the city’s Gig Worker Paid Sick and Safe Time (PSST) ordinance. The payment will go to cover city fines and compensate more than 1,600 workers for back wages. Additionally, withholding benefits, overtime, and meal and rest breaks (whether a result of misclassification, or in general) can result in workers filing class action lawsuits against the company, potentially resulting in significant costs, impacting productivity and damaging the organization’s reputation.

Another risk for gig work companies is insufficient safety measures for workers. Unlike with formal employees, companies often do not provide gig workers with safety training and may not offer formal ways to report safety concerns. This creates an environment where workers who are often under pressure to complete as many rides or tasks as quickly as possible may get into accidents or leave dangers unreported, creating liabilities for themselves and the company.

Other states have their own gig work regulations either on the books or in the works and President Joe Biden has expressed support for gig worker classification as employees, but there is currently no national legislation on this issue. However, in March, the House of Representatives passed the Protect the Right to Organize Act (or PRO Act), which would reclassify gig workers as employees, affording them all the benefits included in that status. The Senate has not yet taken up the measure.

Driver Safety Tips for Fourth of July Trips and Post-COVID Return to Work Commutes

Historically, the Fourth of July holiday weekend has presented some of the most dangerous days for drivers in the United States. Indeed, it may be the country’s riskiest holiday of the year. This year, while many may be cancelling their holiday plans and staying home, others may be taking to the roads after months of little travel amid COVID-19 lockdowns.

Looking beyond the long weekend, many drivers are also getting back on the roads as businesses across the country return to work after COVID-19 closures and quarantines, either resuming their old commutes or driving for work.

“Stay-at-home orders resulted in less vehicle traffic but, incidentally, speeding and reckless driving increased dramatically as drivers took advantage of the empty streets,” said Kevin Quinn, vice president of claims and customer experience at Mercury Insurance. “This dangerous behavior puts lives at risk and can result in unnecessary collisions and fatalities. It’s especially dangerous as cities, counties and states reopen and more drivers begin returning to the roads. Drivers need to check themselves and be aware and respectful of the increasing number of vehicles surrounding them.”

He added, “Many drivers are also out of practice—aside from maybe some trips to the grocery store, their longer commute driving skills may be a bit rusty. It’s important to review the rules of the road before setting out on your trip to ensure your safety and that of others.”

As you and your employees get back behind the wheel, Quinn offered these 10 tips to help everyone stay safe over the long weekend and during the return-to-work period for businesses nationwide:

  1. Get reacquainted with your vehicle and driver settings. If your vehicle stayed in park for the majority of stay-at-home orders, it may require some maintenance. Check the oil level and tire pressure to ensure they haven’t decreased before driving. Make sure your seat and mirrors are still positioned optimally for an unobstructed view of the road ahead and remove as many blind spots as possible.
  2. Have a collision avoidance plan. Plan ahead for potential driving emergencies—such as a dog running into the street, another vehicle running a stop sign or a sudden obstruction on the highway—and create a strategy for how to react. Having a collision avoidance plan helps to make you a safer driver and protects motorists around you.
  3. Plan travel time accordingly. If you need to be at the office or an appointment by a specific time, be sure to allow yourself enough time to arrive at your destination without rushing. Account for potential delays like traffic congestion and don’t wait until the last minute to leave your home. Speeding and weaving in and out of traffic lanes to get where you need to be is dangerous and inconsiderate of other drivers.
  4. Remove distractions. According to the National Highway Traffic Safety Administration, most crashes are the result of distracted drivers. Distractions such as using or manipulating your phone, noisy or overly active passengers, eating and multi-tasking will all result in unsafe driving conditions. Reduce or remove these types of distractions while on the road so you can focus on keeping yourself and your passengers safe while driving.
  5. Be aware of other drivers. Driving safety isn’t just about your behavior, but also depends on those around you. Don’t assume they’re being attentive—they may be distracted and not see the stop sign or traffic light ahead of them. Use caution when entering intersections, changing lanes, turning and entering and exiting parking spots.
  6. Remain cognizant of speed. Speed limits are set for a reason, so don’t break them. Driving under the speed limit can be dangerous for others on the road. If your car won’t accelerate to the posted limit, turn on your flashers and safely make your way to the side of the road for service.
  7. Maintain proper following distance. Rear-ending makes up a substantial portion of total injuries sustained in collisions. Following too closely behind a car hinders your ability to come to a full stop on time and it also limits your sight-lines. The rule of thumb is putting at least three seconds of space in between your vehicle and the car in front of you. Use a fixed object—such as a pole or overpass—and count the seconds between when the car in front of you passes it and when you pass it to determine the appropriate following distance.
  8. Stay actively engaged in the task of driving. Most modern vehicles are equipped with advanced driver assistance systems—like lane departure warning and active emergency braking technology—to help drivers avoid collisions, but this technology isn’t a substitute for proper and safe driving practices. Keep your eyes focused on the road ahead, and check mirrors, over your shoulder and use your signal when turning or changing lanes.
  9. Remember to yield to pedestrians. Walkers and joggers may have grown accustomed to fewer cars on the streets, thus, may forget to look both ways before crossing. They also might not be paying the utmost attention to their surroundings, particularly if they’re looking at their phones, but pedestrians do have the right of way, even if jaywalking. Use caution when driving on roads with high foot traffic.
  10. Obey posted traffic signs. Many cities have been repairing roads during the stay-at-home period, when fewer people were driving. Keep an eye out for any temporary traffic signs surrounding transit construction.

Deer Collisions Drop Slightly, But Accident Costs Still Rise

With fall in full swing and holidays on the horizon, new information about animal collisions on the road have been made available for employers and employees.

State Farm’s 16th annual deer-vehicle collision study indicates that overall in the U.S., drivers had a 1-in-167 chance of having a crash with a deer, elk, moose or caribou. This is a five-point drop from last year when the national odds were 1-in-162.

What’s more, State Farm reports that the national per claim average rose for the second year in a row to $4,341 from $4,179 during 2016-17.

The chance of hitting a deer, or another large animal, doubles in the fall. The months with the most claims are November, October and December, in that order.
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Some tips for avoiding animal crashes include:

  • Slow down, particularly at dusk and dawn.
  • If you see one deer, be prepared for more deer to cross the road.
  • Brake if you can, but avoid swerving. This can result in a more severe crash.
  • Avoid distractions. Devices or eating might cause you to miss seeing an animal.
  • Do not rely on products such as deer whistles. They are not proven effective.

Additional Autumn Road Hazards

The modest drop in deer collisions doesn’t mean the risk isn’t still prevalent. In its Fall 2018 Seasonal Smarts Digest, Farmers Insurance identified collisions with animals as the top seasonal hazard for drivers between September and November over a five-year period. Collisions with cyclists and multiple vehicle chain collisions followed closely behind as the top types during fall months.

“If you do find yourself in a situation involving a potential collision with deer or other animals this fall, try to stay the course,” said Jim Taylor, head of claims customer experience for Farmers Insurance. “Believe it or not, it may be safer for you and other vehicles on the road to remain calm and stay the course rather than swerving at high speeds in an attempt to avoid the animal.”

Deer Collision Costs on the Rise

Drivers beware: Whether operating a company or personal vehicle, it’s that time of the year again—mating season for deer, causing them to be more active and more than doubling the likelihood of a collision through December. What’s more, State Farm reports that the national per claim average—from July 1, 2016 through June 30, 2017—rose to $4,179 from $3,995 during 2015-16.

State Farm warns that, “Whether you hit a large animal, or it jumps into the side of your vehicle, such collisions can cause significant injuries and property damage.” Although more prevalent in some states than others, drivers everywhere need to be alert and focused on the road.

In its 15th annual deer claim study, State Farm ranks states by a driver’s likelihood to hit a large animal such as deer, elk, moose or caribou. According to the study, while West Virginia continues to lead the nation, the state saw a 4.7% decrease from 2016, with one out of every 43 drivers likely to hit a deer or other large animal.

There were also some increases among the top 10 states over last year’s study. Montana drivers have a one in 57 chance of a collision—a 1.8% increase; and Pennsylvania drivers have a one in 63 chance of a crash, a 6.3% increase.

The top 10 states where a driver was most likely to have a large animal insurance claim remain fairly consistent, State Farm said. Wisconsin moved into the top five, swapping positions with South Dakota. Wyoming moved into the top 10 at number eight. North Dakota moved up to number 10 and South Carolina is no longer in the top 10. Thirteen states had no change in ranking.

The Property Casualty Insurers Association of America (PCI) offers these tips for drivers:

• Buckle up. Seat belts save lives and help prevent injuries.

• Time of day is critical. Deer are generally more active during dawn and dusk hours, so pay attention to your surroundings and stay alert.

• Avoid distracted driving. Put the phone down, and never text while driving.

• Have a plan for roadside assistance. If an accident occurs, have the phone number for your insurer or roadside assistance ready. Some towing companies take advantage of drivers after an accident and you could find yourself facing excessive fees or complications recovering your car from the tow yard.

• Update your proof of insurance. Replace any expired insurance identification cards in the event you need to prove you have insurance after an accident. Although having a hard copy is best, don’t panic if you have misplaced yours—37 states have enacted laws that allow you to show proof of coverage on your smartphone. Find out if your insurer offers this feature.

• Watch for road signs that alert you to areas that are populated with more deer.
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• Stay in your lane. If you see a deer, brake firmly but do not cross the center lane into potentially on-coming traffic.

If you do have a collision, State Farm recommends that you:

• Move your vehicle to the side of the road, if possible, and turn on your hazard lights. If you must leave your vehicle, stay off the road and out of the way of oncoming traffic. Deer are most active at dusk and dawn—times when you or your vehicle may be less visible to other motorists.

• Call the police. Alert authorities if the deer is blocking traffic and creating a threat for other drivers. If the collision results in injury or property damage, you may need to fill out an official report—this report also can prove useful when filing your insurance claim.

• Document the incident. If it’s safe to do so, photograph the roadway, your surroundings, damage to your vehicle, and any injuries you or your passengers sustained. If witnesses stop, take down their account of what occurred, and ask for their contact information.

• Stay away from the animal. A frightened, wounded deer could cause harm with its powerful legs and sharp hooves.