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Industry Insights

Grinberg: Prop. 22 Possibly Overturned. What Now?

  • State: California

Do you remember Proposition 22?

Gregory Grinberg

Gregory Grinberg

Ever since Sacramento passed Assembly Bill 5, seeking to severely curtail the ability of businesses to retain independent contractors, every industry has tried desperately to carve out an exception to AB 5’s scope. Well, Uber, Lyft and the rest of California’s gig economy sought to carve out their own exception with Proposition 22.

In November of last year, the majority of Californians voted Proposition 22 into law, but this was immediately challenged in a lawsuit. Well, a trial judge has now overturned Proposition 22, finding it unenforceable. Of course, an appeal is almost certain.

So, what should we do? Well, what we SHOULD do is spend time reflecting on the true mysteries of life: What was in that briefcase in "Pulp Fiction"? Did Han shoot first? (Spoiler alert: Yes he did, and I care not a fig for what Mr. Lucas has to say).

But, as we rarely do what we really should, let’s take a hypothetical. What if an Uber driver is involved in an accident tomorrow? What happens? Workers’ comp or no? 

Well, Uber would likely issue a denial to any workers’ compensation claim, maintaining that the driver is not an employee. Meanwhile, an application would likely be filed on the theory that between AB 5 and the recent ruling regarding Proposition 22, the Uber driver is an employee. Uber would likely continue its denial while the appeal is pending. On and on it goes.

I would expect the filing of applications with all eyes on the results of any appeals regarding the validity of Proposition 22. After all, if an application is not filed timely, even while the validity of the application is up in the air, the statute of limitations would likely bar further proceedings.

Fun times.

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.

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