The Gig is Up

the gig economy works in the state. The law, referred to as a B five, is supposed to make it harder for app based platforms like Uber and Lyft to classify their drivers as independent contractors rather than as full time employees. The law codifies and expands a twenty eighteen California Supreme Court decision known as the Dynamics Case. Today, on Deep Background, we're gonna do something a little different

than we usually do. Instead of having just one long conversation about a topic, We're going to talk to two different people, one at a time, with very different perspectives on AB five. The first is Lorina Gonzalez. She's the California assemblywoman who actually sponsored the bill. I talked to her about why she believes in it and how exactly it will work when it goes into effect in January.

Thank you so much for joining me. Let's start by talking about this important and interesting bill that you've introduced into the California legislature called AB five. That's the shorthand, I guess AB is Assembly Bill AM I right. Yes. AB five is connected to a decision that the California State Supreme Court made a couple of years ago, and it has to do with the essence of the gig economy and how employees should be treated under the law. Tell us what we need to know about this law.

It basically says, look, in order to be in a pennant contractor, you have to actually do that type of business separately than this organization. You can't be doing the business of the company itself. So you know, if the company is a delivery company and you're a delivery driver, you probably work for the company. And so it's a pretty straightforward test. We often describe it as this, if you do the work of the company, you probably work

for them. So that's the essence of the idea. And this is why from the standpoint of Uber or Lift or any of the other gig economy companies it's a disastrous decision for their business plan because it basically says that if they're in the business of driving people around, then a driver is an employee, is not an independent contractor, right, And of course now Uber says they're not in the business of driving people around, so this is going to

be They say they're in the business of connecting people to the people who will drive them around, and that they're doing the connection. But that's a hard case to make out, at least under this test. The core issue classification cases is is a given person an employee and therefore entitled to the protections of state law for employees, or is the person an independent contractor not restricted in what he or she can do, but also simultaneously not

entitled to the protections that state law gives employees. Correct? Correct. If you're an employee, you have a number of rights, including the right to minimum wage and over time, the right to workers compensation and employment insurance. The employer has to put in their their required seven point five percent to Social Security and to Medicare their contribution. You have the right in California to paid sick days and paid family leave. You have the right to, of course join

a union, so there are a number of individual rights. Uh, there's there's protections against sexual harassment, there's protections against discrimination that employees are are awarded. So that's all the good stuff that employees get if they're classified as employees. Why do some people want to be classified sometimes as independent contractors. Well, some independent contractors really are small businesses and people want

to operate in that way their tax benefits. Sometimes for an individual who has multiple clients, who is writing off you know, a home office and gas and expenses where they can service multiple clients but with the same sort of needs and in which case they really are often acting as a small business that a lot of Unfortunately, some employees think it's better to be independent contractor because they assume they don't need to pay as much in taxes.

That's often because they don't realize their tax implications and aren't paying them. And there's so many small independent contractors or have been in California that there hasn't been a ton of enforcements, so we know we've lost a lot of payroll taxes and taxes that are become the responsibility of the contractor when the employer isn't pay for them. But that, of course is unfortunate for the small business

person who doesn't realize they owe these taxes. Often, big companies like Uber and Lyft or door Dash and many many others, they say, we want to be disruptors. And what they mean by disruption is they're not going to have to treat the people who work for them as employees. And they have a whole theory about why that's a good thing, and others have a view about why it's

a bad thing. But the point is it's a change, and the State Supreme Court, I guess, in the Dynamics decision, had to set down a rule to help clarify whether someone counts as an employee or an independent contractor when working for something like one of the gig economy businesses. And what's the basic rule? I think there are three parts,

aren't there? There are three parts? But I want to step back for a minute, because a lot of people do identify this as a kind of a knee jerk to the gig economy, when in fact, the Dynamics decision had been going through the courts for ten years. It's really not what we think of as the Ubernlift Postmates since Dart kind of economy. These were delivery drivers that

that predated a lot of the gig economy work. And so although it does affect the gig economy and that has been the largest abuses we have seen, it was never a decision or a bill that simply was targeted at ubern lift. And I think that's important because a lot of folks who have been caught up in this bill said, well, why are you targeting us? It was supposed to be towards ubernlift. No, it's about misclassification in general.

And if you look at a state like California, where misclassification cost about seven billion dollars a year to our state and thus to our taxpayers, this is a larger decision and a larger issue that affects many more people than those in the gig economy. How are you measuring the cost to the California's economy when you say seven a billion dollars? What's that? What is that number? What

are you measuring? That comes from? Of course the state Labor Commissioner's office, but it includes everything payroll taxes, of course, it to workers compensation claims that aren't paid for when somebody doesn't have workers compensation. Often doesn't have healthcare either, and so when they're hurt on the job, it's we as taxpayers pick it up at the emergency room, so indigent care. When somebody loses their job, they no longer have a job, they don't have unemployment insurance, So we

often have to pick those types of costs up. When somebody isn't being paid enough, obviously we have to pay in terms of food stamp, subsidize housing, and subsidize free lunch program. So there's a number of ways that we subsidize companies who must classify their workers, and it provides a cost, of course to the state. As you describe a B five, it sort of sounds like no reasonable person could disagree with it, and I'm sure that as

a sponsor of the bill, that's exactly what you believe. Nevertheless, in the real world, there are people, including even some uber or lift drivers, who are nervous about the possibility that they will lose the flexible ability that they value, and perhaps are also nervous about thinking of themselves as employees when they haven't considered themselves as employees. They've thought

of themselves to a great extent as independent contractors. What would you say to people who have those fears or concerns. I take it the part of your job as a legislators get the law pass. A part of it is also convincing the people who will be affected by the law that it will make their lives better and will not make it worse. So what would you say? And that's true. And I kind of have a unique perspective

on this because I came out of organized labor. I was a labor leader when I was elected to the State Assembly, and so I am used to dealing with workers who operate out of fear. Often in organizing drives, you see it a lot. In contract negotiations, you see it. And so I understand and am very empathetic to workers being afraid, being ill convinced of things by bosses who

often lie or mislead those workers. And that's what we've seen here, and we try to be very obvious these companies, whether it's Uberlift or Postmates, Instacart, whoever it is, they're controlling the schedules of these workers. Now, so this so called flexibility is an interesting argument, and sometimes you have to break it down and have the individual discussions with

the drivers. They often know, you know Instacart, for example, we had a people complaining that if you try to not take a job, they won't pass you on to the next job. Right you can't reject the job. So that's not quite the flexibility they say that they have, or that they convince their drivers they have. You can't just wake up at two in the morning in an industrial area where there are no rides and say you're a lift driver and be carting somebody, because if it's

not available, it's not available. We've seen in New York City, even with workers being independent contractors, that uber and lift or are now controlling which parts of the city that they can give rides in. We know now with the way they INCENTI yes, certain areas and ensure that people can actually make some money. They push people to certain areas of the city during certain times. So there is a level of control being operated now, and you often have to break it down for the drivers and have

that discussion. That all makes perfect sense to me. I think there's not the dedependence that people necessarily imagine that there is. But what about the argument that there will be even less independence if the companies now, for example, know they have to pay minimum wage for an hour that the driver has worked, and then the driver wants to say I'm available at a time when statistically it's

improbable that there will be enough jobs there. I would imagine that what I would do if I were the company, as I would just say, well, you can't, you can't work this hour because we just don't think you're going to make enough to get past the minimum wage. And so it might be that there's you know that there is a limitation to freedom now, but wouldn't there be even more limitations once they are a categorization of drivers

as employees. Well, you know, that's ultimately up to the company, and that type of flexibility, whether you're an independent contractor or an employees always up to the company. And so I think that that's a red herring because I think it's happening now, and so M yes, there there are people who will say, but you know, what if I want to drive for five dollars an hour? We have laws in this country. You know, we've heard it plenty

of times. What if my thirteen year old one wants to work, you know, we don't allow that to happen. What if they want to work in a factory and make subminimum wage. You know, we have laws for a reason so that there's an even playing field. And we know that the so called decisions by some workers to want to undercut basic labor laws hurt all workers. And so you know, the vast majority I think of drivers that we talked to want to make above minimum wage.

Of course they want to have the benefits of employment. Well, with that, you have to require rules. And one of the things I hear most often, not just from drivers, but you know freelancers in general, is if I want to be an independent contractor, why can't I just do that? Well, you can go start your own business, right, nothing prevents you from going in starting your own car business, for example, where you can shuttle people back and forth, but there

are rules that you have to abide by. You can't decide. We live in a society where you can't decide I'm going to undercut basic labor laws which affect and hurt other people because I want to. I mean, you can do that. The worker themselves aren't going to be held liable, but the companies can't hire people in that kind of situation. I know that journalists are not the main constituency that you're setting out to protect here. But I'm a journalist and so it's on my mind, and I don't think

I'm alone in this respect. One of the things that AB five does is, if I'm not mistaken, it says that if you're a freelance writer and you write more than thirty five articles in a year for a given publication, then you have to be treated as an employee of that publication. So I, for example, write a column a couple times a week for Bloomberg. If I lived in California and Bloomberg was in California, they would have to

make me an employee. They couldn't treat me as an independent contractor as they presently do, right, And I think some journalists are worried about this. I mean it strikes me, as you know, I actually do feel genuinely like an independent contractor sitting in my office. I have a real job for a university, and then I also write in my column, so I don't feel like I'm an employee of the of the entity that publishes my articles. What's the what's your response to that? To that number, and

why did you why not an't make an exemption for journalists. Well, I didn't make an exemption for journalists because we worked with actual staff journalists. We worked with the unions that represent journalists and the publications themselves. And there has been a massive abuse of the use of permalancers or freelancers, independent contractors in journalism, and most journalists will tell you

that that that abuse exists. So if you provide a full exemption, especially in a time when you kind of see this resurgence of unions in the newsroom, you're really going to put those efforts at jeopardy. Journalism has changed, But that's not a reason to basically get the career of journalism. Let me ask you what is really a philosophical question. And you know, I understand that you come out of labor, so I get I have some inkling of where you'll answer me from. But the philosophic question

is sort of this. To me, there's very little doubt that there are lots of industries where unionization is absolutely necessary in order that management not exploit workers. And then there are some industries where the workers actually have either a reasonable amount of bargaining power or significant independence in the kinds of judgments and decisions they make, where you know, it makes sense if people want to be independent contractors,

they should be able to. And then in between there's the very complicated, messy world in which we actually live, where you have to go deep into the weeds when it comes to those really hard choices. As I understand it, a B five for the most part, sets the presumption in favor of a person being an employee, and it's pretty hard to get out of that. I'm wondering why, in the margin where it's genuinely hard, where it's tricky,

why not set the default the other way. Why not say, let's experiment, let's try new sorts of things out, and then over time, if it's not working, we can switch it back the other way. Why isn't that sort of spur to possible innovation, even though granted we might go too far in some instances. So I hate to called exemptions because there's no pure exemption. You still have requirements

to ensure somebody's an independent contractor. But in terms of who should be considered that, we think a lot about barriers to entry into that profession. So the higher barrier into the entry of that profession, the more comfortable we

are saying this person has individual bargaining power. So for example, if you're a doctor, a lawyer, you know, if there is a many years of school, specialized schooling, testing, there's licensing, you know, we feel a little more comfortable like that individual can make these decisions for themselves and are actually making these decisions and not just subject to an employer saying this is what we're going to do, right, And everybody has to then aqueous to that because there's so

many other of these type of employees out there who are willing to work for less. That's basically how we end up with a race to the bottom. And does that not worry you as being I mean, it's a fascinating line that you're drawing. I'm deeply fascinated by this idea that you know, the more education you have, the higher the barrier to entry, them more confident we are

that you have bargaining power. It sounds great, not just not just education though, because fine artists are also exempted through this process, and fine arts art necessary to become an artist. You mean, well, there's a specialize I think talent that you have that allows you to have more

bargaining power. And you ask another question, and I want to get to that, why not air on the side of and I will put it in my ideological stance, why not air on the side of the company instead of the worker, so and allow innovation because we're going to allow these exemptions and see where it goes from there. And I'd say, the reason I haven't done that, and

I've been very judicious. I feel like in trying to write a law that makes the most amount of sense for workers is being in the legislature for the past, I guess six years now. I know that it is always hard to undo an imbalance of power that's in favor of corporations and of companies and that hurt workers, that it would be much easier to correct things in

the other way. And so I was protective of workers, and that was I think a very intentional decision in order to say, yes, we might have to in the future and for innovative purposes if you will, or new kind of I guess professions that will come up. We may need to re examine some of this, but it's much easier to say this is the broad labor law and deal with it, and that way the power is

in the hands of the workers. That's a kind of structural reform we need in this country in order to rebalance kind of the large problems we have with income inequality and with workers being exploited at work. And I guess the other side would say, unless that scares away business, right, because we all want people to have jobs. And then the question is, might it be the case that too much regulation would create a disincentive for businesses to experiment

and to do new things. No one, even the companies, don't admit that their interest is primarily in promoting the interests of the companies. They would say, well, if our company does well, we'll create new jobs and that will

make everybody better off. Yes, where at times of record employment, if you will, record low unemployment, and yet at staggering rates of income inequality and underemployment, And so it seems like the perfect time to say, if you're going to offer a job, it should be a real job, a sustainable job where somebody can actually live off of having just one job. And so I think the timing for this is perfect. We also have and this is kind

of interesting to me. California is a large state. It could be, you know, a country in its own However, we also have a number of states who number one, already had something like an ABC test on the books Massachusetts, for example. We see New Jersey enforcing their ABC test for unemployment insurance against ubern left their states who already have had this but haven't really enforced it as much. And then we have states who are going towards it.

We have the states like New York holding hearings on what independent contractor misclassification law would look like if it would be the ABC test. So although California is leading the way, I anticipate a number of especially left leaning

states to be going in that direction. And of course we have a situation where almost every presidential candidate on the Democratic side has endorsed this approach and came out supportive of California's AB five of reclassifying workers as employees with the right to organize and with really re empowering unions to research in the United States. So I think the timing on this is perfect because a company can try to avoid a California law for so long, but

operating on a level plane field is important. And the last thing I'd say about this, and I think this is really important. We heard from a lot of businesses who are actually grateful for us doing this. And that's because when you are a business that's operating by the rules and by the rules that seem very obvious, and you're undercut by a company that comes in and says, I'm just going to be innovative, I'm going to hire you by app and so I no longer have the

same cost as you do. Well, that's a competitive disadvantage that hurts society, it hurts the state, it hurts the worker, and it hurts the business that was planed by the rules. And so it is time to treat everybody the same and fairly. And I think that AB five helps us do that. From over here on the other coast, we'll watch your bill and your career with great interest and excitement. So thank you very much for joining in. Good luck

with everything that you're doing. Thank you. Of course, not everyone thinks that AB five is fair or that it's a smart economic move. Uber Lyft and DoorDash have launched a ninety million dollar campaign in support of a ballot initiative that would ask California voters essentially to allow them not to be covered by the law in exchange for

providing some improved conditions for their drivers. As part of this measure, the companies are promising to provide lots of their drivers with benefits they don't currently have, like minimum wage standards and some healthcare stipends, without officially turning them into employees. I spoke to Adrian Durban, a spokesperson for Lyft, about what it would be like if all lift drivers suddenly became employees rather than contractors, and why the companies

are so reluctant to let that happen. Adrian, I'm so pleased that you were able to join us. Describe from the perspective of Lift your employer just how disastrous is AB five for your business model. Sure well, thanks so much for having me. I appreciate the opportunity to be here. You know, I think when we're talking about the issue of AB five, it's important to take a step back and think about what does the driver community on the

lift platform look like. Ninety one percent of drivers who drive with Lift drive less than twenty hours per week, and actually seventy six percent drive less than ten hours per week. These are people who are using the platform to earn extra income on a schedule that works for them.

A lot of people are they have other jobs and they're earning extra income to supplement that or their students or their caregivers or retirees, and they either aren't able to work full time or have no interest in working full time, so they're coming to lifts and other platforms like it to earn extra money on a schedule that works for them. And what they tell us overwhelmingly that the most important thing to them, in addition to earning

income is that flexibility. So what we've been focused on here in California is protecting that flexibility while strengthening the platform and making it better for drivers in terms of providing additional benefits, protections and guarantees for let's say the seventy six percent of your drivers who drive for less than ten hours a week. Yeah, what happens to them if they are deemed to be employees? Is there any reason they just can't continue to work those same hours

but just get different, different pan different benefits. Sure, I'm glad you asked that question. So if ultimately drivers were classified as employees, a couple of things would happen. First, we wouldn't need nearly as many drivers as currently are working on the platform, we would have to behave like every other major employer that has employees for their workforce. And what that means is drivers would be put on set schedules, on shifts. And let me explain why that's

why that's the case. Yeah, why would you tell why would you have to do that? That's the big question. Yeah. So, under an employment model, drivers would earn would start earning their wage from the moment they turn the app on until they to the moment they turn the app off. Currently, what happens is that drivers get paid during what we call booked time, which is when they have they're on their way to pick up a passenger, or they have

a passenger in the car. Under an employment model, they would be paid for the entire time they have the app on. So you can imagine why we would have to put drivers onto shifts. For the same reason that companies like Starbucks don't allow their baristas to just come in and work whenever they feel like it, for however long they feel like it. They need to match their supply of workers to the demand that exists at a

particular time. So when Starbucks, obviously they have more barista's working in the morning, when lots of people are buying coffee, not so many in the late afternoon and evening when people are not buying coffee, So we would be really forced to implement a similar model. If we didn't do that, you can imagine the situation where drivers would sign up for as many apps as possible. Right now, many drivers do work for multiple apps, and they can do that

at the same time. They can turn on Uber and Lyft and DoorDash and just wait for the next ride request to come in. Under an employment model, if you were paying for the entire time they had the app on, then there would be nothing to prevent somebody from turning on all the apps, going to an area where there wasn't going to be any demand, and getting paid wages from each of those companies while not doing any work.

So you can understand why that wouldn't make sense. So under an employment model, we would have no choice but to put drivers on scheduled shifts, which is something they've told us overwhelmingly they oppose. So I hear what you're saying, and certainly from the standpoint of your seventy six percent of drivers who worked through than ten hours a week for them, if many of them were no longer are working according to their own schedules, there might be a

significant change for them. What about from the company's perspective, however, I mean, just because seventy six percent of your drivers work through then ten hours a week, doesn't mean that seventy six percent of the rides that you organize are by those drivers. In fact, it must be the other the other way around. What what percentage of the rides that you arrange are being given by drivers who work more than twenty hours a week. I don't have that data.

I don't think we disclose that data. You're right, very important. It would be pretty important for understanding the question. I mean, because you can imagine a person on the other side saying, look,

you're you're right. We concede the point that for the ten hours a week drivers, this may not be what they want, But we care more about the drivers who are effectively treating their job as a you know, with with lift or with uber or with or dash as a effectively as a full time job, and we're trying to improve things from them, even admitting we're doing it at the expense of the part time employees, because after all, that's what you know what labor offen and advocates for.

You know, labor unions are often in favor of improving the standards of living for people who are full time employees at the expense of part time employees, and I think they usually are willing to not always, they're usually willing to be open about that. What I can tell you is that even among the drivers who work more than twenty hours a week, they still tell us that they value the flexibility quite a bit, in fact, more

than anything other than their income. So even if you're working full time, one of the things that they love about this type of work is that, you know, if you have if you have children and you need to take your kid to the doctor, you don't need to get permission from your boss to take time off. If you decide you want to watch a World Series game because your favorite team is in the World Series, you can decide I'm not going to work at that time.

So even the drivers who are working more than twenty hours a week value the flexibility and the ability to set their schedule, even if they're working, you know, as you said, more than twenty hours a week. So what we're what they've also told us and this goes for drivers, no matter how many hours they work. They are looking for additional protections and benefits, and that's what we've put

on the table here in California. So we've proposed a minimum wage floor so that they are guaranteed that they'll earn at least a certain amount every hour that they

are working. We are also putting on the table a healthcare benefit, and then on top of the healthcare, we're also putting in place other benefits, so occupational accident insurance coverage, so if you get injured on the job, you'll be compensated for that, which is not something that they currently exists, and we recognize that that's that's an issue for drivers, so we've put that on the table. And you're proposing this in the form since the California legislature already passed

eighty five and it's been signed into law. You're proposing this as a referendum that would seek essentially an exemption for participating companies from the law that was passed by the legislature. Am I get that right? Yeah, So it's what's referred to as a ballot initiative, and we are in the process right now of getting the title in summary, which is what they call it, and that will happen sometime before the end of the year, and then we would go out and collect signatures to qualify for the

ballot in November of twenty twenty. I would say that there's a bit of a distinction. I wouldn't call it an exemption from AB five. There's actually quite a few industries. More than fifty industries were actually exempted outright from AB five. What we are saying is, let's create a new model.

The initiative that we are going to put on the ballot is based on feedback that we've received from thousands of drivers, and this is across multiple platforms about Okay, what do you like about this work and what would you like to see improved? And again, what they tell us overwhelmingly that what they love about it is the flexibility,

which goes out the window under an employment model. But they want they want more guarantees around pay, they want healthcare, they want injury protect action, they want discrimination protection, they want an ability to appeal if they are deactivated by by the companies for whatever reason. Those are all the things that are included in this ballad initiative and again, it's based on the feed the feedback that we got

from them. May I just ask, so you know, what's fascinating to me is clearly somebody who is working a relatively small number of hours is going to value flexibility, and even someone's working a lot of hours unquestionably will get some benefit out of the fact of work our flexibility. I assume though, that the more of your income you rely on a ride sharing app to earn, the more that your flexibility is constrained by when there are actually

rides available out there. You might say, you know, in my perfect preferences to work between two and five in the morning, but there just aren't that many rides out there relative to cars, so I'm not going to work

those hours. So I guess what I'm wondering is what would you say to supporters of the bill who would say, yeah, we recognize that there's some sacrifice of flexibility, but in an increasingly gig based economy, as more and more companies come up with models like this, effectively, the results of this this new disruptive employment model are to leave people without the kinds of protections that are traditionally afforded to

to full time employees. I mean that's like, that's not I'm trying to describe an argument that's the most reasonable argument, not an emotionally driven argument, a rational logical argument that that says, you know, look, flexibility will be a cost. We acknowledge that, but the benefit outweighs the cost. Yeah, And what I would say to that is that is that we disagree that it outweighs the cost. When you

ask drivers what matters, they tell us flexibility. I would also say that the under the proposal that we put forward, the more you work, the more the more benefits would accrue to you. So someone who works less than ten hours a week is not going to qualify for healthcare, but someone who works more than fifteen or twenty five hours a week will, So you'd get more. The benefits kind of scale depending on how much you're actually you're

actually working. So we've tried to devise a proposal that recognizes, you know, some of the points that you're making, which is that you know, if you drive more, then you should you should get more. And that's that's what this proposal actually does. Let's say you don't win, you know, you get this, you get the signatures it goes on the ballot and it doesn't garner a majority of California voters.

What will that mean in practice? I mean, as you said, you'll have to move to more of an employment model. Would would Lift still continue to do business in California? Um? Yes, I mean, let's let's be clear at one thing. What what AB five does is not to automatically reclassify drivers as employees. What it is is it's a It's it's legislation that codifies and extends the so called ABC tests

for contractor classification. And that's actually been been an effect in California since April of last year with the Dynamics Supreme Court ruling. So, you know, I think there's a misperception out there about what AB five actually does because of the way it's been characterized in the media and elsewhere, and that people often refer to it as the bill that makes Lift and Uber drivers employees. It doesn't do that.

It puts in place a new and kind of more more stringent test to decide whether somebody is an employee or a contractor. But under that test, under that test, I mean, we could walk through the elements, but is it would it be your your position that your drivers

do qualify as independent contractors under that test. I mean, the three elements are basically degree of control of the employee, UM, whether the employee is working outside the main business of the company, and whether they're in a customarily independent, you know, line of work. And so I can imagine arguments on

all three of those things. But under the under the law and under the state Supreme Court decision, you guys would have to prove that you met all three of those things in order for your drivers not to QUALFI is that what you would do? You would take it to accord and try to make that argument. Yeah. Well, I think it's important to point out that the ABC test does actually exist in other states where we operate successfully.

So again, it doesn't just because AB five becomes law doesn't immediately mean that drivers are classified as employees fight however, I think that. Yeah, but we also are recognizing that the status quo is not sufficient, and we want to make things better. We want to strengthen the protections for drivers. We want to add benefits and minimum wage guarantees. I mean, we think there's an opportunity here to modernize labor laws that we're you know, basically written decades ago, and on

our current system we have it's a binary choice. You're either an employee or you're an independent contractor. But we're trying to create is a new model that protects the independent status and the flexibility, but provides many of the benefits that employees get. There are many other countries that have a third model, and we see no reason why

why we couldn't do so here. We think that the proposal we've put on the table really strikes strikes the right balance between protecting what's what's so great about this work for so many people while providing additional guarantees and benefits and protections. Well, I'm super grateful to Adrian for your time and for your explanation, and I'm sure we'll be hearing much more about the story going forward. So I really want to thank you for presenting your point

of view. Thanks No who's right ultimately about the utility and value of a B five? After listening to Lorina Gonzalez, it's pretty hard not to feel that many drivers who make their living driving for Uber or Lift or door Dash would have a lot to gain if they were actually treated as employees who got benefits on the other hand, the Lift spokesman Adrian Durban also makes a plausible case that there are people who do not drive full time for the companies who might no longer be able to

enjoy the benefits of a part time gig job. Balancing those interests, the interests of the full time drivers against those of part time drivers is not a simple matter, But that's why we have legislatures. The California legislature has passed a law that clearly opts to prefer the full time drivers and make sure that they become protected employees

over the interests of part time drivers. Now, what remains to be seen is how the public in California will react when it's asked on a ballot initiative whether the law should be changed. That's something worth watching closely in the future. Not only will it tell us a lot about this debate, but it will probably tell us something very important about the future of the gig economy nationwide.

And now are sound of the week. Those are people rallying in front of the Supreme Court in Washington, DC this week on the occasion of the Justice's consideration of the legal future of DHAKA, the deferred Action for childhood

Arrivals program. You all know that program. DACA was announced first under President Barack Obama, and its essential goal was to make sure that people who were brought to United States as children by parents who might have become undocumented, and who themselves became undocumented and therefore unable to stay in the country legally would be allowed to remain in the country and even allowed to work. Those are the

people we've come to call dreamers. During President Obama's administration, a very similar program to DACA, one that was aimed at parents, was challenged in court and ultimately struck down by the US Court of Appeals for the Fifth Circuit that went to the Supreme Court that time, and the Supreme Court split four to four after the untimely death of Justice antonin Scalia at the Supreme Court, a tie goes to the decision below, So the four to four

decision left in place the decision that had been made by the Court of Appeals striking down the parent version of DACA. When Donald Trump became president, he expressed in a tweet, of course, that it was a great idea for dreamers to be able to stay in the United States. Nevertheless, he issued an order putting an end to the DACA program. Why, well, his order said the DACA program was unlawful and would

not be able to be defended in court. Of course, immediately, DACA advocates went back to the courts and they challenged Donald Trump's suspension of the order. Sure enough, a lower court and then a quarter of appeals held that Donald Trump was not able to reverse Barack Obama's decision. And that's the issue before the Supreme Court. Now, Now, if this all sounds legal and confusing, it is, and here's why.

Logically speaking, what you would expect is that if a president like Barack Obama has the power to create a program like DOCCA, then the next president, Donald Trump, should have the same power to end the program. In order to avoid that legal argument, those who supported DOCA told the courts that Donald Trump had not done a sufficient

job of explaining his decision. If they say Trump had simply announced that he didn't like the DOCCA program because he thought the dreamers shouldn't be able to stay in the United States, that would have been permissible. But they argued in court because Trump insisted that he had no choice but to rescind the program because it violated the law.

He was stating an untrue fact, because although the Supreme Court had indeed said that a similar program that had been struck down by the Court of Appeals would remain struck down, the Supreme Court had not absolutely foreclosed the legality of the DACA program. What will the justices do with that ruling? At oral argument, it sure sounded like there were five votes to support Donald Trump's decision to

rescind DACA. Crucially, the four four split that the Court had reached in reviewing the Court of Appeals decisions several years ago almost certainly included Chief Justice John Roberts on the side of the people saying that the parent version of DACA was unlawful. We can't say that with one hundred percent certainty, because in a four four decision, the

justices don't necessarily state who voted which way. But it's almost certain that the four liberals would have voted to say that Barack Obama had the right to shudaka, and the four conservatives would have said that he didn't. Consequently, Chief Justice Roberts, who is essentially the swing vote these days, is basically likely to be the swing vote here, and it seems relatively likely that he's going to vote to

uphold Donald Trump's decision. If the Supreme Court does that, it will create a legal situation in which Dreamers will actually stand the risk of being deported from the United States. Of course, Donald Trump could go easy on enforcement, or it's conceivable he could reach some kind of a compromise

where he allows Dreamers to remain. The difficulty is that in an election season, it will be very hard for Trump to take a stand other than a strongly anti immigrant stand, and at a time when Congress is considering his impeachment, it is vanishingly unlikely that he would reach a legislative compromise over the question of DHAKA. All this means that we're headed for a genuinely sad and worrisome

moment for Dreamers. Ultimately, their best hope may be that Donald Trump is not reelected and that a new president readopts some version of DACA. But here's the twist. Depending on how the Supreme Court decides this case, it might actually imply or even hold that no president has the authority to adopt the DCA program at all. The devil

is in the details. So when the Supreme Court decides this case, we're going to have to dig deep read the opinion and try to determine whether, under its logic, a democratic president in the future could reissue the DOCCA program in some new form. I promise you that when that happens, you'll hear about it on your Sound of the Week. Deep Background is brought to you by Pushkin Industries. Our producer is Lydia jenne Hot, with engineering by Jason

Gambrel and Jason Roskowski. Our showrunner is Sophie mckibbon. Our theme music is composed by Luis GERA special thanks to the Pushkin Brass, Malcolm Gladwell, Jacob Weisberg, and Mia Lobel. I'm Noah Feldman. You can follow me on Twitter at Noah R. Feldman. This is Deep Background.