“If I want to work 20 minutes a week, or 30 hours, I can do that,” says a worker in a mysterious new TV ad. “When I need a day off to study for a big exam, I can do that,” says another.
The ad isn’t for a jobs site or any one employer. It’s been made by a new lobbying group called Flex, which calls itself the “voice of the app-based economy”, and is backed by gig work mainstays including Uber, Lyft, DoorDash and Instacart.
Flex seeks to defend the business models of these companies, which use workers labeled as independent contractors, amid a renewed push in Washington to pass labor laws that would defend those workers’ right to unionize and strike. Joe Biden made a renewed call in his State of the Union address for the passage of the Pro Act, which would expand the federal definition of employees to include many gig workers.
Flex’s website takes a veiled shot at the legislation: “Policymakers want to implement a one-size-fits-all employment model for all workers, regardless of their needs or desires,” it claims, under the headline “Independence Works”.
It shows pictures of smiling college students, parents and teachers alongside apparent testimonials from people without surnames. “Let’s say I want to work a few hours outside of my regular job to save for my kid’s college. I can do that,” says one Ricardo P.
“Independence works, ’cause I’m the boss around here,” says Ian W, handily repeating Flex’s tagline verbatim.
But workers and labor advocates are already pushing back against Flex’s narrative. Nicole Moore, a Los Angeles-based rideshare driver, told the Guardian that gig economy apps are designed to control workers who usually don’t have the means to say no.
Moore described a daily frustration that she and other drivers face: apps like Uber and Lyft don’t give her the details of a ride, such as its distance, expected time, and pay, until after she’s accepted it – at which point she has little choice but to follow through, even if it loses her money.
“I find out that it’s going to take me 45 minutes to go five miles, and I’m going to get about $5 for the ride. My only choice then is to either basically do volunteer work by accepting the ride, or canceling it. And we are disciplined, and threatened with being terminated, if we cancel it.
“So don’t call me an independent contractor, because that’s not what we are.”
Moore said that the gig companies’ narrow definition of “flexibility” only focuses on scheduling. But real flexibility, she said, would mean providing “things like family leave, medical leave and paid parental leave.”
Veena Dubal, a labor law professor at UC Hastings said the gig companies’ tactics were “insidious and very seductive” because “the vast majority of people in the US don’t understand the difference between employees and independent contractors”.
“They try and capture one aspect of what workers really need and want, which is scheduling flexibility, and spend millions of dollars trying to convince regulators, voters and workers themselves that this is impossible within a structure of employment in which the companies have to provide a minimum wage and benefits,” said Dubal.
“In fact, there’s no legal restriction on providing flexibility to employees – nothing is preventing them right now from providing both flexibility and benefits,” she added. “What they’re doing is undoing a century’s worth of the labor movement’s fight for a living wage.”
In a statement to the Guardian, Flex’s CEO, Kristin Sharp, said: “App-based work is fundamentally different from traditional employee-based work, which is why people turn to it in the first place. It’s not just about scheduling. It’s also about where and how people work.
“Nationally, app-based workers spend an average of eight hours a week working on these platforms and most turn to it for supplemental income,” Sharp’s statement continued. “We believe there is a way to support app-based workers without limiting their independence and are eager to work with policymakers, community leaders, and workers across the country to find forward-thinking solutions.”
Sharp is a former senior staffer for Senator Mark Warner, one of three current Democratic holdouts impeding the Pro Act’s passage in the Senate.
In 2020, the gig companies spent a record-breaking $200m on an all-out ad war to pass Prop 22, a California ballot initiative that offered gig workers partial benefits, while exempting the companies from a landmark labor law, AB5, which would have required the apps to classify their workers as employees with full labor rights. That law has since been declared unconstitutional by a state judge, though its backers have appealed the ruling.
Before it passed, Prop 22 was marketed as a progressive measure, with its backers touting its minimum wage for gig workers, and a partial healthcare stipend for workers who met a certain threshold of hours worked.
But since the law took effect, a survey has found most California rideshare workers have not received healthcare benefits, and many drivers have reported their pay has decreased. A 2019 study by UC Berkeley estimated the law’s effective minimum wage at $5.64 an hour, since it doesn’t take into account the time drivers spend waiting to be assigned their next ride.
Dubal said the gig companies promoted the measure by co-opting the language of racial justice in the wake of the nationwide protests over George Floyd’s death. “They used the faces of black and brown workers smiling, claiming falsely in ads that Prop 22 was going to give them new rights,” she said. “The companies said, ‘Look, these workers are desperate. We’re giving them a few crumbs. You should vote for Prop 22.’ And they did an incredibly effective job of confusing people.”
Last week, Washington state’s legislature quietly passed a gig-company backed bill, HB2076, that would offer limited benefits to gig workers while exempting the gig companies from important labor laws. A member of a union that backed the bill told reporter Luis Feliz Leon the union had no choice after the gig companies threatened a repeat of Prop 22. “They will misinform the public with a barrage of TV ads, so we will lose an initiative,” the union member said. “We could lose everything.”
Moore expects Flex to follow the same playbook. “You hear a lie enough times it starts to become truth,” she said. “And that was their approach to having Prop 22 become law. They lied to drivers and they lied to voters about what it was going to do. They said this was the only way to keep passenger prices down. That’s a lie; passenger prices have skyrocketed. They told drivers they would give them security and it would give them flexibility. It’s done neither.
“We eat all the costs of operating a billion-dollar company’s fleet,” the rideshare worker added. “The flexibility they’re protecting is their own flexibility.”
