- Huh!
- You are gonna wanna
tune in for this one.
- Because we're California --
- Yeah, and we keep on doing stupid shit.
You ever seen any legislation
that needed to be clarified
to this extent, this quickly?
We have 50 states.
Once again, why are we the
only one dealing with this?
- Employers have certain
basic minimum obligations.
These workers are some of
the most vulnerable people
in society and deserve basic protections.
- He's absolutely wrong,
because he's assuming
that everyone deserves
to get treated as an employee,
and that's simply not the case.
Once again, they have the
flexibility to generate income
however they wish.
You literally, literally
can go and start work
for the completing company, as you desire,
any minute of the day.
- Louis?
- You can figure out how to comply
with our worker protections
in exchange for getting
access to a customer base
of 39.5 million people.
- Humane working
conditions are sweeteners?
- That's bullshit, humane
working conditions,
they're not sticking their
hands in buzzsaws, okay?
- ♪ Law Flip, Law Flip, ♪
♪ Objection, your honor, ♪
♪ Turn the, turn the game upside down. ♪
♪ Law Flip, Law Flip, ♪
♪ Objection, your honor. ♪
♪ Turn the, turn the game upside down. ♪
- This is an unfiltered conversation
about law, life, AB5,
Prop 22 and so much more,
it's Law Flip.
So I'm Benjy Smith.
Today we have Matt Bilinsky,
who is always controversial,
but always entertaining,
debating my partner, Louis Benowitz.
So look, they both went to Cornell,
they're both crazy, they're both from LA,
so we're going to debate
a major issue coming up
in the election in November,
so both of these people are lawyers.
One, surprisingly, represents the suits.
He's not the person that you
would typically associate
with suits, but he is.
And then we have Lou,
who represents employees.
So, let's flip the game upside down,
but before we do, we
have a new phone number.
It's 1-833-LAW-FLIP.
That means any time you have
any legal question whatsoever,
call us.
So, and also please go
to YouTube.com/lawflip
and lawflip.com to sign up
to be the first to get notified
for giveaways, deals,
announcements and so much more.
Okay, so here's the deal.
We're gonna have a little bit of a debate.
There's a little bit of a controversy
around gig economy, AB5, Prop 22,
it's not the most exciting topic,
but it affects all of our
lives, and for some reason,
the two of you are equally
passionate about it,
but you land on different
sides of the coin.
So, what we're gonna do is,
I'm gonna give you each a
minute opening statements
to say why you should or
should not support Prop 22.
And then we will get into
the different topics,
and each of you will be
able to address the points,
and the other person will
have 30 seconds to respond.
So let's start, Matt Bilinsky,
give me your one minute
on why people should or
should not support Prop 22.
- Yeah, it's pretty simple.
Everything surrounding AB5 legislation,
the new laws around classification
of employer/employees
versus contractors,
the fallout from the
Dynamex case in California,
everything around that
has been a disaster,
start to finish.
Not just in terms of the
gig economy and ride shares,
every industry across the board.
Essentially, we view it through
the prism of pretty much,
California courts and
legislators looking at
this particular topic and figuring,
how can we make things more
difficult on businesses
and harm workers that wish
to maintain flexibility
and how they participate
with some of these companies?
We've got 50 states,
if you look at the legislation
and the parameters for
this classification,
the other 50 states, why
is California the outlier?
Why is the California the one
that just never happens
to narrow the scope
for being able to classify someone
as an independent contractor?
That's such a deviation from
pretty much any other state.
And if you're doing that,
you're gonna look at what
the historical factors
in making this distinction
are, and all of them,
overwhelmingly, they slant
in favor of classifying
these individuals,
or at least Uber drivers
as they exist right now,
as contractors.
So why are we changing that,
other than for some California legislators
to be able to get some headlines,
looking like they're
fighting for the little guy,
which at this point, I think,
even those have been negated,
because I think the public
sheen on this right now
is understanding that's
harming a lot of these workers
more than it's helping them.
- Matt Bilinsky comes out swinging!
- Louis Benowitz, one minute, let's go.
- Currently in California,
under AB5 and the Dynamex decision,
not Dynamex, it's actually Dynamix,
- Yeah, yeah, it's Dynamex.
(laughs)
- Employers have certain
basic minimum obligations.
They have to for pay their workers
for all their working time.
They have to reimburse them
for all the expenses they incur.
They have to give them paid
sick time when they're sick,
up to three days a year state-wide,
or six days for certain
municipalities like Los Angeles.
They have to provide disability
and workers' compensation protection.
Uber and the other gig companies,
after losing in the courts,
after losing in the legislature,
are now trying to pass this
off and you, the voter,
by spending over $100
million to rig the rules
solely in their favor,
just for delivery drivers,
not for any other
classification of worker.
Doing so, while it may make
getting rides and deliveries
a little cheaper,
will leave some of our most
vulnerable workers in the state
even more vulnerable and force them
to bear Uber and Lyft's
costs of doing business.
Moreover, if we ever want
to change this thing,
despite all the criticisms
people have of AB5,
what they put in this initiative
is a seven eighths super
majority vote requirement
to amend the thing.
So, just as there's been
some issues with AB5
and people have sought amendments,
if we ever wanted to change the rules
that Uber, Lyft and these
companies want to stick us with,
you'd need a seven eighths super majority.
It would never happen.
And that alone is reason
to oppose this thing.
- Okay, Louis, many argue employee status
would result in app companies
paying more for workers
and hiring fewer workers.
Why would you want that, Louis?
- Because these workers
are some of the most
vulnerable people in society
and deserve basic protection,
so if you're driving for an
Uber or Lyft type company,
even if prices will go up,
you shouldn't treat these
people as disposable
the second they get sick or get hurt,
and if we don't extend basic
employment protections to them,
that's exactly what's going to happen.
- Matt, is Louis wrong?
- He's absolutely wrong,
because he's assuming
that everyone deserves
to get treated as an employee,
and that's simply not the case.
These people are already,
what you're saying is that
what's occurring right now,
what has been occurring
through the entirety
of Uber's operating history,
and Lyft's operating
history, is not feasible.
But it clearly is feasible,
because these people
continue to drive for Uber.
They continue to voluntarily
enter into a relationship,
a service based relationship,
with these companies,
and accept payment in exchange
for their efforts and services.
So, if you're saying that this
is an untenable situation,
well, clearly it is tenable,
because people are operating
under it right now.
And just because some people happen to be,
and we can have the academic discussion
over what constitutes
vulnerability and what isn't,
but just because you're vulnerable
doesn't mean you outright
deserve to get classified
as an employee.
That would pretty much negate,
that would pretty much
wipe out the concept
of an independent contractor
nationwide, statewide,
across the universe,
because, okay, as long
as someone may or may not
be in precarious financial circumstances,
they then do deserve to avail themselves
of being an employee and all
the benefits and privileges
that come along with that.
- 30 seconds, okay, go, Louis.
- So the ABC test addresses
this, and so the court,
- Poorly.
- Your criticism is,
you hate the ABC test,
but the ABC test makes determining
who's an employee versus
who isn't really easy
and the second prong of it,
whether you're doing the same work
as the business you're working for,
really answers this question
for who gets to be an employee,
and there are exceptions to AB5
for people with negotiating leverage
and these exceptions are evolving
unless we decide to go pass a law
that takes away the legislature's ability
to ever address evolving situations.
- C'mon Matt, you can answer
this in your next follow-up,
use your next minute.
Okay, app drivers are usually
of modest means, Matt.
Don't they deserve the basic protections
as other workers, Matt?
Or you want to take
those protections away?
- No, because these are not
default basic protections
of all workers.
There are some protections
that are appropriate for those
who are appropriately
classified as employees
and protections that are in place
for those appropriately classified
as independent contractors.
As Louis acknowledges,
there's an avalanche of exceptions to AB5.
When there's an avalanche
of exceptions to a law,
doesn't that seem to insinuate
that the law is not well thought out?
Yes, we all know that that's the answer.
There's tons,
exception after exception after exception,
because the law's stupid
in the first place.
Yes, the idea that you
can only be a contractor
if the service that you provide
has nothing to do with the
core business of the business,
that's ridiculous.
That's not reflected in the
laws and the legislation
in any other state in the country,
ever in the history of America.
It's ridiculous!
- Louis, is California nuts like they say?
- No, California simply
doesn't want companies
like Uber and Lyft to be able
to pass their costs of doing
business onto their workers.
So, if I'm a delivery
driver for a restaurant
and the restaurant employs me directly,
then that restaurant has
to fully reimburse me
for my car expenses.
What Uber's seeking to do is reimburse at
about half of the IRS rate.
- [Benjy] Mmm.
- Yes, but there's this
interesting thing where,
if you're an employee for that restaurant,
you don't get to just decide,
hey, I'm gonna flip a switch,
and all of a sudden I'm not
working for your restaurant,
I'm working for this other restaurant,
with 100% of my own discretion,
on the turn of a fucking dime.
That's a different set of circumstances,
'cause you can't just say,
oh, this is the service
that they're providing,
thus they should be treated the same.
No, one has different parameters
and terms and conditions
around what they're allowed to do
and the nature of their
services versus the other one.
If the situation was
that these restaurateurs,
that there was a system in place
for these delivery drivers for restaurants
to literally, like,
hey, from 8:15 to 8:30,
I'm gonna do one delivery
for this restaurant,
then I'm gonna do a delivery
for this other restaurant,
and then I'm gonna do a delivery
for this other restaurant,
and they actually happen to
be competing restaurants.
That person should not be
treated the same as someone
who says, I am a full time employee,
or even a part-time employee,
that is only allowed to
work for this company
and do deliveries for this restaurant.
- Okay, so Matt,
I'm sorry, Louis,
to that point, he came right in time,
Louis, won't employee status
reduce employees' schedule flexibility
and other flexibility?
- No, because you could still have
someone classified as an employee,
and while they are engaged
in the active duties of employment,
they could be subject
to those entitlements.
So when a worker isn't working,
and not suffered or permitted to work,
then that worker doesn't need to be paid.
If they're just in
uncontrolled time, not working,
you'd still have this flexibility,
it's simply that Uber wants
to dodge expense reimbursement
and payroll taxes and to some extent
paying people for unproductive time
that's inherent to its service,
because it's able to shift its costs
under its proposed model.
- Matt, why isn't the
flexibility argument bullshit?
- Because what he said
is outright incorrect.
That they're not gonna have
to schedule drive times?
They are, this is not even a question.
No, you're going to have to
drive during prescribed times,
the current situation is,
you wanna drive 8:15 to 8:17?
You fuckin' do it.
And in turn, you flip
the fuckin' switch, okay?
That's not gonna be available,
nor does it make sense
if you're gonna classify
them as employees,
so that is a fundamental distinction,
and it's simply, the argument that either,
one, from a practical perspective,
or even, two, from a legal perspective,
in ensuring that the terms and conditions
that the new service terms
and the new employment terms
match the legislation,
inherently is at odds with the notion
of them maintaining any
scheduling flexibility.
It's impossible.
This is not an opinion,
literally, we're saying,
hey, we're going to have
to have these drivers
work in shifts and get paid for time
they're not, that they may
or may not be driving anyone.
- Louis?
- A, that's part of the job,
B, if Uber wanted to address this,
you could address it
legislatively with an hour's work.
Carve out while keeping employee status.
Different industries in California
have different hour's work definitions.
For example, on-site apartment managers
who live on the property,
their definition of hour's work
is their time spent carrying
out assigned duties.
Healthcare workers are just subject
to the Federal Suffered or
Permitted to Work Standard,
so you could still
maintain employee status
with the panoply of protections
with a much narrower legislative fix
than denying employee status,
so let's say take a modified
hour's work definition,
get to where Uber want it to be
and still not gut all of
the employee protections.
- Louis, you continue to say why
someone should be able to
do one thing or the other
based on the legislation,
but you have not explained
why the legislation makes sense.
- The legislation makes
sense for an admitted --
- Other than, hey, these workers
might be in precarious
financial circumstances,
thus we should pay them more.
That is the only basis --
- Isn't that a pretty good argument?
- No, it's not a good argument at all.
- Okay.
- They're adults
who are entering into
a voluntary transaction
with another company,
and to the extent that they are allowed
to chart their own course
to work for other companies
and find any other way to
make money that they want,
no, the company does not
owe them the minimum wage
and other protections they
would owe a full-time employee.
- Lewis, where does Matt
have it wrong there?
- California, for more than a century,
through the Industrial Welfare
Commission Wage Orders,
through Labor Code 1194,
through a whole long
list of court decisions,
has maintained a strong public
policy of protecting workers,
whether that policy is something
that you'd want to do away
with, that's a separate --
- [Matt] Interesting, some
viewers have a question.
Why wasn't it good enough,
why do they need to
layer more on top of it,
since we're already
operating under that regime
that you believe is very sensible?
- Because AB5 is simply,
and the ABC test is simply
easier to administer,
so when we're looking at employment cases,
a lot of the time,
we're looking at class
and representative actions
for how you hold corporate
employers accountable.
And so the ABC test, especially
elements B and C of it,
are objective criteria that
are easy to apply class-wide
and be able to say, yes or no,
are these workers employees
or independent contractors?
And so having a law that works
from a labor law enforcement perspective,
within California's
overall statutory scheme
is consistent with
California's public policies
that the legislature has already decided
are the policies it wants to pursue.
- Okay, Matt,
gig drivers put a lot of
wear and tear on their cars
driving for work.
Prop 22 proposes paying 50% less
than IRS mileage reimbursement rates.
Why is it fair for app companies
to pass these costs onto their workers?
- Once again, because
they have the flexibility
to generate income however they wish.
These companies are not saying,
you're not allowed to
make money any other way.
You literally, literally,
can go and start working
for the competing company, as you desire,
any minute of the day.
So, and once again, not every
piece of Prop 22 is perfect.
So I could maybe say, bump that up to 75,
or even match it at 100%.
But that's still a sub-topic,
that's still a sub-feature
of Prop 22, okay?
The main feature is
maintaining the classification
as independent contractors.
- Yeah, but the maintenance
of the independent class of
contractor classification,
has the primary effect
of depriving employees
of all these benefits.
- Once again, that --
- They're not just,
these app companies aren't,
just in the abstract,
saying, let's make these
independent contractors,
because we just like the term,
- Sure.
- Independent contractors.
- No, but listen, once, these companies,
given that these people
are properly classified
as independent contractors,
they don't owe these people that.
But, if we are trying to throw
a couple of sweeteners in the deal,
okay, if we're trying to
sweeten this and say, listen,
- Humane working
conditions are sweeteners?
- Humane, that's bullshit.
Humane working conditions,
they're not sticking their
hands in buzzsaws, okay?
But if you want to craft
specific sub-legislation
because of the nature of this
company around reimbursement,
for gas or for wear and tear on the car,
I mean, that's fine.
That's something sensible
that customizes the solution
for the nature of the job,
because this is a,
and also because these are companies
that do have such a significant impact
on the lives of the citizens in the state.
That's fine, okay?
But there's a fundamental
distinction between
whether or not they're employees
or whether they're contractors.
And there's no reason that,
the basic foundation of Prop 22 is sound,
that these people should
remain contractors.
As Louis even said, if we're going to,
if we have these policies in place
that seem to be, for a century now,
have slanted in favor of
protecting workers' rights,
once again, that's the
regime we're operating under
right now.
Was not good enough.
- Yeah, Louis, a lot of the
drivers for these gig companies
say they want to be
independent contractors.
They want it, right?
A lot of people, they want it.
Why shouldn't we just
give them what they want?
- Because they don't fully understand
the consequences of their decision,
so they hear the word "independent"
and assume "independent"
equals "flexibility"
and that there's no other
path to get to the same point,
while devaluing the things
they'd be giving up.
- Are you saying that
some people want things
against their own self-interest?
- People definitely want things
against their own self-interest,
- Then adults should not be
able to voluntarily enter
into transactions.
- No, adults should be
able to voluntarily enter
into transactions,
but minimum labor standards are basically
a statutory form of
unconscionability from contract law.
- So pretty much what you're saying is
that any classification of someone
as an independent contractor
is per se unconscionable?
- No, it's not per se unconscionable.
- Well, that's kinda what you just said.
- No, there's certainly a presumption
in favor of employee status,
the burden of proof
on proving someone's an
independent contractor
falls on the employer under current law,
and the employer can rebut that.
- Let's get it out of the way.
You, obviously, Matt, favor,
there are some times where you favor that
somebody should be
classified as an employee,
and Lou, there are some
times where you think
that they should be considered
an independent contractor.
Where are the times?
- Yeah, please, if this, if these people,
if it's so anathema that anyone
who simply may not be getting
all the benefits of employment
to not be an employee,
then when do you think it's appropriate
for anyone to be an
independent contractor?
- Also, before you get to that,
where is it proper for
them to be an employee
in anything like this situation?
- My non-exhaustive answer is,
if you are a full-time, if
you work full-time for someone
and you, under the terms
of your employment,
are not allowed to work for anybody else,
or even not necessarily any competitor,
and if your employer
says you have to be there
from nine to five,
and if you're mot there from nine to five
you don't get to work for me,
that's a fuckin' employee.
- Okay, and Lou, where
is he wrong on that?
- I view employment status versus
independent contractor status
as someone running their own business
or has an independent consulting business,
something where they have
negotiating leverage,
they're providing an independent service
to another business,
that's where independent
contractor status makes sense,
so if a driver decided to contract
on his or her own running,
some sort of delivery
business with a restaurant,
that person, I would think,
could be a properly classified
independent contractor.
It's where you have the third party
who's in the business of providing
a driving or delivery service,
basically employing a bunch
of people to do that very job,
you've just created people
who aren't entrepreneurs,
they're not really running
any sort of business,
they're just doing the
job of that company.
- So what you've done is merged the notion
of vendor and the notion of contractor.
That the only people who can
be independent contractors
are independent business vendors.
And I think that's just,
never in the history of
American business or law,
has any state or any municipality
merged those two concepts and said,
listen, unless you're an
independent entrepreneur
running an independent business,
you cannot be an independent contractor.
- About half the states
follow the ABC test
as their law, actually,
so it's not just California
that's done this.
Massachusetts, lots of other states,
apply the ABC test, and
it's a work in progress --
- Along with other tests.
- With legislative exceptions.
- Along with other --
- Let me jump in.
Matt, don't the apps just
generally have business,
sorry, shitty business models?
Isn't that the real issue here?
They basically artificially lower prices,
backed by venture capital funds?
- Yeah!
- Isn't this kind of
a distraction?
- No, it's not a distraction,
they're two completely
mutually exclusive topics.
- You don't think that the
reason for these businesses
not operating at a profit
has nothing to do with
the employment --
- Okay, if they had to
operate at a profit,
one, they would provide a much rarer,
much less efficient
and much less widespread service.
Okay, you wanna be waiting
27 minutes for every Uber
and you wanna pay three times the cost?
Okay, let's stop, sorry,
there's not no consequence to this stuff.
There's not this, oh, there's
all these poor drivers
and so we need to make sure
that they're paid more.
Well, I'm sorry, there's
consequence to that, okay?
There's not no business impact.
You're not going to be able
to provide ride share services
in any semblance of how
they've been provided
over the past six or seven years
if you want to require, no matter,
require that all drivers
be treated in this manner.
It's just impossible.
- [Benjy] Louis.
- I'll just say this one last thing.
You wanna say, yeah,
Uber is subsidized by Saudi
Arabian oil money, okay?
- [Benji] They are.
- Oil comes out of the
ground in Saudi Arabia,
that generates money.
The Saudi Arabian Royal Family
has sovereign wealth funds
that invest in soft bank and
other venture capital funds,
- Right.
- They'd have been funding
Uber's losses for a long time,
and they're now major stakeholders
in Uber as a public company.
That's the reality.
But how Uber is maintaining
an inefficient business model
while what they really try
to do is establish themselves
as the primary driverless car
company for the next 30 years
is really what they're trying to do.
Fine, is that the most, do I love that?
No, but it's a reality.
But that still doesn't have any impact
on just the nonsensical,
- You're viewing the independent
contractor/employee debate
in a vacuum, irrespective of
what the business model is?
- Yes, of course,
other than just saying, oh, well,
this is a company that does bad things
and because they're not a very
socially responsible company
that operates with a
profitable business model,
then we have to have a
nonsensical classification
of their workers.
How do those things connect?
- Okay, so I think there's
a point of agreement here,
which is we both agree
that they're ultimately
heading over to self-driving cars
and that the workers are an interim piece
- Correct.
- Of this whole equation.
So then what we're really talking about
is how much they can squeeze these workers
over that interim time period
to try to make themselves
either smaller money losers
or less unprofitable,
or more profitable, depending
on how they're counting,
who really knows what's going on there,
but the idea of somewhat reduced
service at higher prices,
we don't know what the supply/demand curve
will wind up looking like for
the full impact on service,
but the idea of paying more
for this service to work
because there's a demand for it,
I think people would still
pay more for this service,
you'll just have fewer customers
and that might not be the
worst thing in the short term
'til they get to their driverless model.
- See, that's always the excuse.
Oh, well, the business is going to suffer,
but who really cares?
No! This is something
that needs to be taken
into consideration.
Yeah, this is going to have --
- I mean, why, if the
business suffers in of itself,
funded by Saudi money,
it's operating at a loss --
- It's because if you look at
the historical and customary principles
by which this classification is made,
I'm sorry, anyone who's looking at this,
anyone who's objectively looking at this
knows that most of the
factors slant in favor
of these people being
classified as contractors.
Only this new outlier
California legislation,
I'm sorry, we're the only,
there's a reason this is the
only state it's happening in.
And yeah, New York and
Massachusetts are considering
some similar changes, but they haven't.
We're the only one dealing
with the job losses,
and all the disruption from AB5.
Why are we the only
ones dealing with this?
- Okay, Louis, isn't,
you could add to Matt's point here,
but isn't this going to harm consumers
because more expensive
drivers, more expensive rides?
- There may be some price increases,
but some of this will
be mitigated by things
like pooled rides, so once,
if we ever escape this stupid pandemic,
- So the only thing,
the only counter point
to prices will increase,
oh, you can just do Uber pool.
- I mean, they offer the pool service,
and so, yes, there's going to
be some sort of price increase
because I assume they're
not going to make themselves
less profitable if they're
already claiming to lose money,
so yes, prices will go up.
I'll concede that point,
because there's not much argument to it.
- Okay, so Matt, classifying
drivers as employees
would provide them with paid sick time.
We're already in the midst of a pandemic
and creating incentives for sick people,
many of whom lack health insurance,
to continue working while sick,
is against the public interest.
Why is that not true?
- By that, your insinuation
that it is in the public interest,
thus must be implemented,
once again negates the concept
of an independent contractor, period.
You're saying just because people
may be in tough circumstances
means that whoever they're doing work for
has to treat them as an employee.
Under your logic, where is there any room
for anyone to be an
independent contractor?
'Cause all you have to do is say, well,
we're in tough times right now.
This person might not
be making enough money,
thus you have to classify
them as an employee.
- Louis?
- Someone who actually has
their own business would
not be an employee.
- Not everyone can have
their own business!
- And not everyone can be
an independent contractor!
- Yes, but some people need to be able to,
and by the logic
that you guys are putting
forward right now,
nobody could be one!
- It's not true!
There are myriad exceptions to AB5, --
- That had to be specifically legislated
because there was so much
displacement and destruction
from the general law!
- And it's an ongoing process!
So the idea that legislation --
- Legislation! A binary,
bifurcated classification
should not be an ongoing process.
Of, oh shit, fuck, we didn't realize
that we're going to put all
these independent writers
and bloggers out of any source of income,
and now we have to make exceptions,
or all these session musicians out of,
we're gonna, we're gonna
put them on the streets
because they can't do their work any more!
- You've always gotta clarify legislation
after the fact.
- Oh yeah? You've ever
seen any legislation
that needed to be clarified
to this extent this quickly?
- Well, this is also the
greatest revolutionary,
- Once again,
- the gig economy is
unbelievably changing,
- Yeah.
- It's been around for
about eight years now,
and we have 50 states.
Once again, why are we the
only one dealing with this?
- Because we're California,
and we've decided
- Yeah, and we keep on doing stupid shit.
- And we've decided we
prioritize worker protections!
Because California has a
population of 39.5 million,
there is a certain extent of,
you could figure out
how to comply with our worker protections
in exchange for getting
access to a customer base
of 39.5 million people.
- That's it?
There's more impact from the law,
thus you should have
to comply with it more?
I don't know about that argument.
- The alternative you're proposing
is letting these companies
pay to have whatever rules
they want for themselves.
- No, that's, one, it's so incorrect.
Allowing companies to continue
operating under the rules
that they've been operating on
for the past seven years
since their inception,
number 2, operating based on rules
that do align with principles
that have been governing
this decision for decades.
And governing, once again,
in every other state.
- Yes, except under previous law,
even applying the Borello test,
the first two factors
under the Borello test
are prongs A and B of the ABC test,
so whether the worker is free from control
and whether the worker's
doing distinct work
from the business itself are
the very first two factors
under the Borello test.
- Well, that doesn't really matter
because B and C in the
Dynamex, of the ABC test,
essentially negate one.
'Cause if you don't have the B and C,
you don't have, A doesn't matter.
- Explain.
- Since you have to both allow the worker
to have full control over the
manner in which they work,
and they have to not be operating
in the same core business as
the main company, who cares?
If you give the worker,
this person, full control,
if you say to an Uber driver,
as long as you don't violate the law,
operate this car and the service
however the hell you want.
Just because the core business
of Uber is ride share,
as long as they're providing ride share,
A, the control factor, doesn't matter.
So you've just wiped out
one of those two prongs
that you say are consistent.
- Yeah, so those are consistent
with the Borello factors,
which are multi, Borello is a
multi-factor balancing test,
- Yes, if there's 10 factors,
and you knock out seven of them,
and then kind of knock out another one,
there's no consistency there.
- Yeah, you end up with a far
more consistent application
of the law with the ABC test,
because you could say,
if any of these elements aren't met,
the worker's an employee,
and for purposes of labor law enforcement
on a class and representative basis,
which makes enforcement a lot easier,
which is a high state priority,
then you could apply this thing.
- So we'll make it,
because it's easier to enforce,
we will make a decision
that has no logical,
a very loose logical basis
and harms businesses,
and that a lot of workers don't
even want us to implement,
but because it's easier,
that's the justification?
I'm not sure I see that
as a justification.
- In California, we've
historically screwed law,
er, construed law as governing
conditions of employment
in favor of protecting employees,
so unless you feel like
undoing over a century
of California's Supreme Court precedent,
then that's a policy,
- No, no, no.
- Matt, closing argument.
- Closing argument, I think I've made,
- You have 60 seconds, go.
- I've made most of them,
but you just said 100 years of precedent,
I want to maintain the
100 years of precedent.
You're the one that wants to change
the 100 years of precedent.
I want Uber to continue
to be able to operate
as it has been operating,
under the same worker laws that
it has been operating under.
This is AB5, the ABC test
and how it's being applied
are a complete deviation
from the entire legislative
and commercial history of California,
and once again, every other state, okay?
Look, it's no coincidence
California's the only ones
dealing with this.
And if the answer's, well, California,
we just like to protect workers,
well, one, you're gonna
harm a lot of workers.
You're gonna take away
the source of income
that a lot of people
are using to supplement
otherwise difficult circumstances.
You're gonna take that away,
and we can talk about all
these airy principles like,
oh, Uber should be able to pay more.
They can't.
And they're not going to,
and it's going to put a
lot of people out of work.
It's also going to disrupt
the lives of a lot of people,
and oh, let me talk about a lot of people
who were able to handle
some of their tough
financial circumstances
by not having to go get
themselves into a car payment
because they had ride
share available to them.
They will no longer have that.
There are second, third, fourth
and fifth wave order impacts
of this decision
that we're seeing play out.
There's a reason the judge
granted the injunction,
because they saw the impact.
They were calling Uber's bluff
and it turned out not to be a bluff,
and they said, oh shit.
This is actually gonna happen?
We can't allow them to
shut down in California.
I just don't think this is theoretical.
We're seeing how it's playing out.
- Louis.
- So, just going
to the injunction issue,
it's more that Uber can
pay damages, ultimately.
Uber's been accruing
class-wide damages for years,
and so if you impose a restitution order
under the Unfair Competition Law,
the fact that you tacked on a few months
between now and October
won't really matter if Uber,
but regardless, what
ultimately we're dealing with
the free market economy,
and there will be other competitors
who emerge and decide, you know what,
we could comply with this,
we don't need to give in to
Uber and Lyft and DoorDash.
There are ultimately going to be companies
that find a way to make this work.
You're talking about a customer base
of potentially 39.5 million people.
- Interesting that they haven't so far.
- We will see.
(hip hop music)
What we learned today.
So, it was a spirited debate,
we all had a good time,
you all learned a lot,
we got a little inside baseball,
but I think you guys get the point.
There are two smart people,
beautiful looking guys on this couch,
really in checking,
- Check.
Check all those boxes all around.
- And we are, this is a great debate,
it's gonna be happening
for the next few months.
We're looking forward to the election.
Are you a MAGA supp - I'm just kidding.
(laughs) We're not going there.
Anyways, call us, email us, text us,
comment on all the posts
and ask more questions
of Louis and Matt,
we'll have them guest
comment in our Instagram,
we'll have them answer
questions on YouTube,
let's keep the debate going,
see you next week, Law Flip.
(hip hop music)
- ♪ Law Flip, Law Flip,
objection, Your Honor, ♪
♪ Turn the, turn the game upside down, ♪
♪ Law Flip, Law Flip,
objection, Your Honor, ♪
♪ Turn the, turn the game upside down. ♪
- [Benjy] So they're asking
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So for Law Flip, it's
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