Q&A: What Overturning Prop 22 Could Mean for the Future of the Gig Economy

Kate Wheeling
Kate Wheeling is a freelance environmental journalist based in California. You can find more of her work in outlets including Outside, Medium, Hakai Magazine and Smithsonian Magazine. Follow her on Twitter @katewheeling.
Q&A: What Overturning Prop 22 Could Mean for the Future of the Gig Economy

Labor advocates got a major win last month when a California Superior Court judge ruled Proposition 22—the controversial ballot initiative that allowed ride share companies to keep classifying drivers as independent contractors rather than employees—was in fact unconstitutional.

Prop 22 was passed in November of 2020 in response to California Assembly Bill 5, which gave gig workers wage and benefit protections. Ride-share companies like Uber, Lyft, and DoorDash built their business model on gig workers. And they spent hundreds of millions of dollars to defend it, lobbying in support of Prop 22 and making it the most expensive ballot measure in California's history.

The Service Employees International Union sued the state in January to overturn the proposition, and on Aug. 20, an Alameda County Superior Court Judge Frank Roesche found Prop 22 violated the state's constitution, rendering it unenforceable. Uber and other ride-share companies have already announced their intent to appeal the ruling, and the case is expected to make its way up to the California Supreme Court.

dot.LA spoke with Catherine Fisk, Berkeley Law professor who wrote an amicus brief in favor of the drivers, about what the ruling means for the future of Prop 22, ride-share companies, drivers and the gig economy at large.

This interview has been condensed for brevity and clarity.

The Superior Court found that two sections of Prop 22 were unconstitutional, both of which you outlined in the amicus brief you and others wrote in favor of the drivers. Which parts of the proposition violated the state constitution?

One argument was that Prop 22 unconstitutionally limits the power of the legislature to provide for a complete and adequate system of workers' compensation. Workers' comp is a program that now every state has that provides a system of no-fault compensation for workers who are injured or become ill in the course of their employment. So legislatures everywhere created systems of workers compensation. Business groups, at that time, didn't want to pay the cost of compensating workers for their injuries and challenged these workers' comp systems often in court, and in many cases found judges to invalidate the workers' comp programs in whole or in part. So in California, the people amended the constitution to require that the legislature have plenary—that is complete power—to provide for a system of workers' compensation. This all happened over a century ago. So in the case of Prop 22, the court found that by carving out app-based drivers from the protections of workers' comp, it unconstitutionally limited the power of the legislature to provide for a complete and adequate system of workers' comp. Essentially, the transportation companies were trying to redo what businesses had done a century ago to eliminate workers' comp for some or all employees. And the court said no, because the California Constitution had been amended in 1918, specifically to prevent that kind of move by business.

Berkeley Law professor Catherine Fisk

A second argument was that Prop 22 violates another provision of the California Constitution, which requires that any ballot initiative, like any other piece of legislation, must address only a single subject. The purpose of the single subject rule is to prevent voters from being confused or misled about what a ballot initiative would do. In the case of Prop 22, the particular confusion that the court focused on was that Prop 22 prohibits the legislature from enacting a law that would authorize drivers to negotiate collectively through a representative. This provision of Prop 22, which was buried in the fine print, was not described in the advertising in favor of the proposition. It wasn't even described in the voter information pamphlet, or the summary that appeared on the ballot.

Right, I don't remember hearing about that part of Prop 22 at all in 2020.

You had to read every single word of Prop 22. But even if you had read every single word, you wouldn't have understood what this provision would do. Because in order to understand it, you have to understand federal labor law, federal antitrust law, and their relationship to each other. Here's why. The real significance of that provision was that if the workers unionized it would enable the companies to sue the worker union for being in violation of federal antitrust law. There are 50 lawyers in the country who know enough about antitrust law, and enough about labor law to understand that that's what was going on.

So because this was hidden in the fine print and not described anywhere and had nothing to do with what the what Prop 22 said it was about—which was eliminating minimum standards for drivers—this, the court said violated the single subject rule, because it would confuse voters, you could read all the materials and still not understand what you were voting on. So that was another argument that the court found for why Prop 22 was unconstitutional.

Assuming this goes all the way to the state Supreme Court, the Superior Court decision is upheld, what might that mean for the ride-share companies and drivers?

It means Prop 22 will not be in effect, which means that the legislation that Prop 22 was designed to overrule [AB5] will go into effect, which means that drivers of transportation network companies will be entitled to be paid the minimum wage; they will be entitled to be paid overtime if they work more than 40 hours a week; they'll be entitled to protection against discrimination on the basis of race, religion, gender, etc; they'll be entitled to workers compensation benefits if they're injured. It will improve minimum standards for drivers.

And if the decision is ultimately overturned by the state supreme court, what legal options remain, if any, to get those protections for gig workers?

None. Well, to be clear, Prop 22 did say that the legislature could amend it by a seven-eighths vote. In other words, seven-eighths of the entire legislature would have to vote to change any provision of Prop 22. Why seven-eights? Because the proponents of the Prop 22 know that Democrats have a two-thirds majority of the legislature, and so they wanted to make the majority so great that the legislature could not amend it. Federal law can preempt state law or it can supersede state law. So Congress could provide that drivers are entitled to the minimum wage. Congress could provide that they're entitled to unemployment benefits, if they are laid off. Congress could create a compensation system for injured drivers. But it would have to go through Congress. And it's very hard to get anything through Congress.

Right, so high stakes.

Very high stakes.

What are the implications of this ruling then for the gig economy at large?

The gig economy, so called, especially for low-skill work like driving has been based on a low-wage model. Drivers get paid very little. Many are making way less than the minimum wage. They have no protection if they're injured in the scope of employment. And there's no reason that driving for a living has to be a low-wage job. In the 1950s, when truck driving was unionized, driving was a middle-class job.

So really what this fight is about is how to divide the profits of the app-based driving model. Should more of the money that's being made in this work, go to the workers? Or should more go to the investors? I've received a dozen phone calls or emails since the decision came down by people saying they represent investors in this industry who want to talk to me about what it means—I decline all those calls, by the way—because investors are making a bunch of money in this sector, and they want to know whether they're going to keep making a bunch of money, or whether it's going to be less profitable for investors, and more profitable for workers. That's what's at stake here.

Is there a model that could work?

When taxi cabs came into existence, everybody thought, "Oh, that's genius. Imagine being able to stand on the sidewalk and wave my arm at a yellow car, and have it stop for me and take me where I want to go." The real question is, are we going to regulate this innovative business to ensure that drivers are paid decently and have protection in the case of injury. We figured out how to have taxis and regulate them to protect both drivers and the public; cities all had taxi cab commissions that did exactly that, and they regulated fares. We could have the same model for app-based driving. The real question is, are we going to regulate this innovative business to ensure that drivers are paid decently and have protection in the case of injury. It will probably be more expensive. But when everybody said, "Wow, Uber is half the cost of a taxi," nobody thought, "and why is that?"

The thing about an Uber is that companies figured out that you could have a giant fleet of drivers on the road at all times, with zero fixed cost to the company. The drivers pay for the car; the driver pays their own time; the driver pays gas; the driver pays insurance; the drivers pay if they become injured; and the city picks up the cost of the road maintenance. So the company shifted all the risk and all the fixed costs of the business to the labor force, which was genius from the investing standpoint, but terrible for drivers.


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Here’s Why Streaming Looks More and More Like Cable

Lon Harris
Lon Harris is a contributor to dot.LA. His work has also appeared on ScreenJunkies, RottenTomatoes and Inside Streaming.
Here’s Why Streaming Looks More and More Like Cable
Evan Xie

The original dream of streaming was all of the content you love, easily accessible on your TV or computer at any time, at a reasonable price. Sadly, Hollywood and Silicon Valley have come together over the last decade or so to recognize that this isn’t really economically viable. Instead, the streaming marketplace is slowly transforming into something approximating Cable Television But Online.

It’s very expensive to make the kinds of shows that generate the kind of enthusiasm and excitement from global audiences that drives the growth of streaming platforms. For every international hit like “Squid Game” or “Money Heist,” Netflix produced dozens of other shows whose titles you have definitely forgotten about.

The marketplace for new TV has become so massively competitive, and the streaming landscape so oversaturated, even relatively popular shows with passionate fanbases that generate real enthusiasm and acclaim from critics often struggle to survive. Disney+ canceled Luscasfilm’s “Willow” after just one season this week, despite being based on a hit Ron Howard film and receiving an 83% critics score on Rotten Tomatoes. Amazon dropped the mystery drama “Three Pines” after one season as well this week, which starred Alfred Molina, also received positive reviews, and is based on a popular series of detective novels.

Even the new season of “The Mandalorian” is off to a sluggish start compared to its previous two Disney+ seasons, and Pedro Pascal is basically the most popular person in America right now.

Now that major players like Netflix, Disney+, and WB Discovery’s HBO Max have entered most of the big international markets, and bombarded consumers there with marketing and promotional efforts, onboarding of new subscribers inevitably has slowed. Combine that with inflation and other economic concerns, and you have a recipe for austerity and belt-tightening among the big streamers that’s virtually guaranteed to turn the smorgasbord of Peak TV into a more conservative a la carte offering. Lots of stuff you like, sure, but in smaller portions.

While Netflix once made its famed billion-dollar mega-deals with top-name creators, now it balks when writer/director Nancy Meyers (“It’s Complicated,” “The Holiday”) asks for $150 million to pay her cast of A-list actors. Her latest romantic comedy will likely move over to Warner Bros., which can open the film in theaters and hopefully recoup Scarlett Johansson and Michael Fassbender’s salaries rather than just spending the money and hoping it lingers longer in the public consciousness than “The Gray Man.”

CNET did the math last month and determined that it’s still cheaper to choose a few subscription streaming services like Netflix and Amazon Prime over a conventional cable TV package by an average of about $30 per month (provided you don’t include the cost of internet service itself). But that means picking and choosing your favorite platforms, as once you start adding all the major offerings out there, the prices add up quickly. (And those are just the biggest services from major Hollywood studios and media companies, let alone smaller, more specialized offerings.) Any kind of cable replacement or live TV streaming platform makes the cost essentially comparable to an old-school cable TV package, around $100 a month or more.

So called FAST, or Free Ad-supported Streaming TV services, have become a popular alternative to paid streaming platforms, with Fox’s Tubi making its first-ever appearance on Nielsen’s monthly platform rankings just last month. (It’s now more popular than the first FAST service to appear on the chart, Paramount Global’s Pluto TV.) According to Nielsen, Tubi now accounts for around 1% of all TV viewing in the US, and its model of 24/7 themed channels supported by semi-frequent ad breaks couldn’t resemble cable television anymore if it tried.

Services like Tubi and Pluto stand to benefit significantly from the new streaming paradigm, and not just from fatigued consumers tired of paying for more content. Cast-off shows and films from bigger streamers like HBO Max often find their way to ad-supported platforms, where they can start bringing in revenue for their original studios and producers. The infamous HBO Max shows like “The Nevers” and “Westworld” that WBD controversially pulled from the HBO Max service can now be found on Tubi or The Roku Channel.

HBO Max’s recently-canceled reality dating series “FBoy Island” has also found a new home, but it’s not on any streaming platform. Season 3 will air on TV’s The CW, along with a new spinoff series called (wait for it) “FGirl Island.” So in at least some ways, “30 Rock” was right: technology really IS cyclical.

As TikTok Faces a Ban, Competitors Prepare to Woo Its User Base

Kristin Snyder

Kristin Snyder is dot.LA's 2022/23 Editorial Fellow. She previously interned with Tiger Oak Media and led the arts section for UCLA's Daily Bruin.

As TikTok Faces a Ban, Competitors Prepare to Woo Its User Base
Evan Xie

This is the web version of dot.LA’s daily newsletter. Sign up to get the latest news on Southern California’s tech, startup and venture capital scene.

Another day, another update in the unending saga that is the potential TikTok ban.

The latest: separate from the various bills proposing a ban, the Biden administration has been in talks with TikTok since September to try and find a solution. Now, having thrown its support behind Senator MarkWarner’s bill, the White House is demanding TikTok’s Chinese parent company, ByteDance, sell its stakes in the company to avoid a ban. This would be a major blow to the business, as TikTok alone is worth between $40 billion and $50 billion—a significant portion of ByteDance’s $220 billion value.

Clearly, TikTok faces an uphill battle as its CEO Shou Zi Chew prepares to testify before the House Energy and Commerce Committee next week. But other social media companies are likely looking forward to seeing their primary competitor go—and are positioning themselves as the best replacement for migrating users.


Last year, The Washington Post reported that Meta paid a consulting firm to plant negative stories about TikTok. Now, Meta is reaping the benefits of TikTok’s downfall, with its shares rising 3% after the White House told TikTok to leave ByteDance. But this initial boost means nothing if the company can’t entice creators and viewers to Instagram and Facebook. And it doesn’t look promising in that regard.

Having waffled between pushing its short-form videos, called Reels, and de-prioritizing them in the algorithm, Instagram announced last week that it would no longer offer monetary bonuses to creators making Reels. This might be because of TikTok’s imminent ban. After all, the program was initially meant to convince TikTok creators to use Instagram—an issue that won’t be as pressing if TikTok users have no choice but to find another platform.


Alternatively, Snap is doing the opposite and luring creators with an ad revenue-sharing program. First launched in 2022, creators are now actively boasting about big earnings from the program, which provides 50% of ad revenue from videos. Snapchat is clearly still trying to win over users with new tech like its OpenAI chatbot, which it launched last month. But it's best bet to woo the TikTok crowd is through its new Sounds features, which suggest audio for different lenses and will match montage videos to a song’s rhythm. Audio clips are crucial to TikTok’s platform, so focusing on integrating songs into content will likely appeal to users looking to recreate that experience.


With its short-form ad revenue-sharing program, YouTube Shorts has already lured over TikTok creators. It's even gotten major stars like Miley Cyrus and Taylor Swift to promote music on Shorts. This is likely where YouTube has the best bet of taking TikTok’s audience. Since TikTok has become deeply intertwined with the music industry, Shorts might be primed to take its spot. And with its new feature that creates compiles all the videos using a specific song, Shorts is likely hoping to capture musicians looking to promote their work.


The most blatant attempt at seducing TikTok users, however, comes from Triller, which launched a portal for people to move their videos from TikTok to its platform. It’s simple, but likely the most effective tactic—and one that other short-form video platforms should try to replicate. With TikTok users worried about losing their backlog of content, this not only lets users archive but also bolsters Triller’s content offerings. The problem, of course, is that Triller isn’t nearly as well known as the other platforms also trying to capture TikTok users. Still, those who are in the know will likely find this option easier than manually re-uploading content to other sites.

It's likely that many of these platforms will see a momentary boost if the TikTok ban goes through. But all of these companies need to ensure that users coming from TikTok actually stay on their platforms. Considering that they have already been upended by one newcomer when TikTok took over, there’s good reason to believe that a new app could come in and swoop up TikTok’s user base. As of right now, it's unclear who will come out on top. But the true loser is the user who has to adhere to the everyday whims of each of these platforms.


We Asked Our Readers How They’re Using AI in a Professional Setting. Here's What They Said

Decerry Donato

Decerry Donato is a reporter at dot.LA. Prior to that, she was an editorial fellow at the company. Decerry received her bachelor's degree in literary journalism from the University of California, Irvine. She continues to write stories to inform the community about issues or events that take place in the L.A. area. On the weekends, she can be found hiking in the Angeles National forest or sifting through racks at your local thrift store.

We Asked Our Readers How They’re Using AI in a Professional Setting. Here's What They Said
Evan Xie

According to Pew Research data, 27% of Americans interact with AI on a daily basis. With the launch of Open AI’s latest language model GPT-4, we asked our readers how they use AI in a professional capacity. Here’s what they told us:

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