Arnold & Porter Kaye Scholer offices in Washington, D.C.

Making ride-hailing drivers employees under California's wage-and-hour laws would be akin to “trying to fit a square peg into a round hole,” the head of Arnold & Porter Kaye Scholer's labor and employment group said Monday.

David Reis, speaking to reporters on a call organized by opponents of a bill to codify parts of the California Supreme Court's 2018 ruling in Dynamex, said the state's hours-based work statutes don't mesh with the flexibility that Lyft and Uber say their drivers want.

“We're dealing in a legislative employment law regime in California that is really quite rigid, quite paternalistic, [and] does not allow for the type of flexibility and economy that have become so attractive in the gig economy,” said Reis, a San Francisco-based partner. “And so trying to make these folks an employee and apply an employment regime that was based on the traditional employee is just not going to work.”

Opponents of the legislation have launched a lobbying and social media blitz as the bill races towards its final scheduled policy committee hearing next week. Uber and Lyft spent more than $336,000 combined on lobbying state policymakers in the first quarter of 2019, with AB 5 listed in public filings as one of the companies' main advocacy targets.

Monday's call was put together by a coalition of business organizations and companies, including Lyft and Uber, eager to keep their workers classified as independent contractors. The Dynamex decision, particularly if codified under Assembly Bill 5, would make it much more difficult for gig companies to avoid making their workers employees subject to the same overtime, meal-and-rest period and payday scheduling rules that apply to more traditional workplaces.

Reis was joined on the call by four ride-hailing drivers from around the state who said the provisions of Assembly Bill 5 would eliminate their ability to work when they want, care for loved ones and earn extra income to pay off bills.

The New York Times reported Saturday that large labor groups have been negotiating with Uber and Lyft over a possible deal to exempt ride-hailing drivers from AB 5's provisions. The bill's author, Assemblywoman Lorena Gonzalez, D-San Diego, responded Saturday by tweeting that the two companies “have yet to explain why we would ever exempt them out of #AB5 – not wanting to follow labor laws is NOT a valid reason.”

“I understand the difference between employment status, a real [collective bargaining agreement] & everything less,” Gonzalez said. “I did not run for office to sell out workers.”

Gonzalez and her allies have argued that California's employment laws do not bar employers from adopting flexible schedules for their workers.

The assemblywoman has taken amendments to exempt certain classes of professional workers, including licensed insurance agents, certain medical workers, lawyers, investment advisers, real estate licensees and hair stylists.

Reis, who is not representing Uber, Lyft or the employers' coalition, according to a coalition spokeswoman, said state payday laws would hurt gig workers who want to be paid in real time.

“Under the California Labor Code you have to designate in advance a payday and you have to have regular payday,” he said. “And so to pay somebody on a daily basis really wouldn't work under the current wage-and-hour laws.”

 

Read more:

California AB5 Leaves Gig Companies' In-House Counsel in Labor Law Limbo

9th Circuit: 'Dynamex' Worker Classification Test Applies Retroactively

Gig Companies' Lawyers 'Welcome' New US Labor Opinion Letter

Calif. Supremes Embrace Worker-Friendly Classification Test