California
Want to help California gig workers? Protect undocumented immigrants
Final week, a California appellate court docket upheld Proposition 22 — a 2020 state poll initiative that defines app-based rideshare and supply drivers as unbiased contractors slightly than workers — reversing a lower-court choice from final 12 months. The ruling was a serious victory for gig corporations similar to Uber, Lyft and Doordash, which spent over $200 million to move the measure. Although the case might go to the California Supreme Courtroom for assessment, Prop. 22 stays the legislation of the land and lots of gig economic system employees are shut out from office protections.
Even with Prop. 22 in place, nevertheless, California employees nonetheless have AB5, handed in 2019, to guard them. The legislation defines employment broadly, granting a broad swath of employees entry to fundamental protections, together with a minimal wage, employees’ compensation and unemployment insurance coverage. AB5 stays probably the most vital current reform effort to fight employers who “misclassify” their employees as unbiased contractors to disclaim them authorized rights. States searching for to enhance office protections are more likely to observe California’s lead on this regard, whereas gig corporations have already begun trying into passing copycat variations of Prop. 22 elsewhere.
With this in thoughts, California lawmakers ought to think about taking all steps obtainable to strengthen AB5. A method they’ll do that is to bolster the legislation’s protections for undocumented employees.
Undocumented immigrants with out federal work authorization are disproportionately more likely to be wrongfully labeled as unbiased contractors. This “misclassification” impacts not solely immigrant taxi and rideshare drivers but additionally numerous employees in closely immigrant occupations similar to residential development and janitorial work.
That is no accident.
Because the labor sociologist Ruth Milkman has written, companies have developed methods over the previous half-century to weaken the ability of organized labor and create extra precarious types of work, together with the usage of unbiased contractor standing to keep away from authorized and monetary obligations. Over time, as situations worsened in quite a few industries, U.S.-born employees left for higher prospects if they may, and undocumented immigrants — barred from formal employment by federal legislation — incessantly took their locations. Because of this, Milkman writes, jobs that after paid an honest union wage have been “reworked into ‘jobs Individuals don’t need.’ ”
Given the prevalence of misclassification in closely immigrant occupations, undocumented employees are more likely to be overrepresented among the many estimated 1 million employees who’ve been reclassified as workers statewide.
AB5 applies to undocumented employees a minimum of to U.S. residents or immigrants with authorized standing. Underneath California’s new authorized customary, most employers ought to presume that their employees are workers, no matter immigration standing. And due to an earlier California legislation, all workers are entitled to the complete safety of the state’s labor code.
Implementation of AB5, nevertheless, poses distinctive challenges for undocumented employees.
Most necessary, many employers might assume that if state legislation requires them to deal with their employees as workers, federal legislation does as nicely — together with the duty to confirm that each one workers are legally licensed to work, utilizing the I-9 kind that’s acquainted to new hires. This assumption may lead many immigrant employees to lose their jobs or encourage them to supply false paperwork, which might expose them to felony or civil immigration penalties. Luckily, a state legislation that defines a given employee as an worker doesn’t essentially set off the I-9 requirement. Federal legislation applies a narrower definition of employment than AB5, which means that this identical employee may nonetheless be thought-about an unbiased contractor for immigration functions, exempt from immigration verification.
In different phrases, states like California can present their undocumented residents all the protections of worker standing with out triggering any federal immigration penalties — however to take action, they should make clear employers’ tasks. Reform payments constructing on AB5 ought to embody unambiguous language explaining that California deliberately defines employment extra broadly than federal immigration legislation. Crucially, each the legislative textual content and outreach efforts to companies ought to clarify that AB5 doesn’t require employers to confirm employees’ immigration standing. Within the industries the place many undocumented employees earn their livelihoods, these clarifications might not solely assist to maintain folks of their jobs, however higher protected on the job as nicely.
On a associated observe, like many different states, California has a legislation on the books that criminalizes immigrants who use false paperwork to safe a job, which basically duplicates penalties on the federal stage. This legislation is a holdover of the notorious nativist 1994 poll initiative, Proposition 187. Lawmakers ought to repeal this relic from a time earlier than California turned the progressive, pro-immigrant state it’s immediately. Decriminalizing immigrant work would serve the goal of AB5 to empower employees by bringing them beneath the safety of the formal economic system.
AB5 will not be an ideal answer to the issue of worker misclassification. Irrespective of how the legislation defines employment, companies will deliberately design their workplaces to supply the fewest rights to their employees. And for the numerous undocumented immigrants who depend on freelance or unbiased work, it could be tougher to seek out alternatives to assist themselves because the state implements the brand new legislation. Labor code enforcement have to be attentive to each of those issues. However AB5 and payments prefer it are a step in the suitable route for employees. Even because the courts give their blessing to Prop. 22, lawmakers can and may start to consider taking the following step — guaranteeing that the protections of California’s labor code apply to as many employees as attainable, no matter immigration standing.
Jacob Hamburger is a postdoctoral affiliate with Cornell College Regulation College’s Immigration Regulation and Coverage Analysis Program.