26 Litigating CA Wage & Hour Class and PAGA Actions (23rd Edition) Seyfarth Shaw LLP | www.seyfarth.com But then the California voters spoke. In November 2020, California voters overwhelmingly passed Proposition 22, the Protect App-Based Drivers and Services Act.130 Proposition 22 classifies certain app-based ridesharing and delivery drivers as independent contractors, provided they (i) maintain control over their schedules, (ii) need not accept a particular “gig,” and (iii) are not restricted from performing services for multiple companies (except during their engaged time). Proposition 22 also entitles app-based drivers to certain benefits, such as a minimum compensation, time-and-ahalf for overtime, paid sick time, unemployment insurance, bargaining rights, per-mile compensation, and a health care subsidy (for drivers who average 15 hours per week of engaged time in a calendar quarter).131 The future of Proposition 22 is murky. In 2021, a trial court ruled that Proposition 22 was unconstitutional and unenforceable. The California Court of Appeal reversed the trial court’s decision, in part, in 2023. The case is now before the California Supreme Court, and a decision is expected in 2024 at the earliest.132 130 Bus. & Prof. Code §§ 7448 et seq. 131 In Lawson v. Grubhub, Inc., the Ninth Circuit “conclude[d] without difficulty that Proposition 22 does not apply retroactively.” 13 F.4th 908, 914 (9th Cir. 2021). The court reasoned that “California has a settled presumption against interpreting statutes—including ballot propositions—as having retroactive application.” Id. 132 Castellanos v. State of California, Case No. S279622.
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