ELECTRONICALLY
`F I L E D
`
`Superior Court of California,
`County of San Francisco
`10/27/2020
`Clerk of the Court
`BY: EDNALEEN ALEGRE
`Deputy Clerk
`
`1 Reynaldo Fuentes, SBN 329360
`
`
`
`PARTNERSHIP FOR WORKING FAMILIES
`
`
`1305 Franklin Street, Suite 501
`2
`
`Oakland, CA 94612
`3 Tel: 510-281-7555
`rey@forworkingfamilies.org
`
`Dana Hadl, SBN 224636*
`5 BETTZEDEK
`
`
`3250 Wilshire Blvd., 13th Floor
`6 Los Angeles, CA 90010
`
`
`Telephone: (323) 648-4705
`7 dhadl@bettzedek.org
`
`8 Glenn Rothner, SBN 67353
`
`
`
`Jonathan Cohen, SBN 237965
`g ROTHNER, SEGALL & GREENSTONE
`
`
`510 South Marengo A venue
`
`1 o Pasadena, California 91101
`
`
`Telephone: (626) 796-7555
`11 grothner@rsglabor.com
`jcohen@rsglabor.com
`
`12 Attorneys for amicus curiae Bet Tzedek, National
`13 Employment Law Project, California Employment
`Lawyers Association, Women's Employment Rights
`14 Clinic of Golden Gate University School of Law,
`Partnership for Working Families, and Asian
`15 Americans Advancing Justice -Asian Law Caucus
`
`
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`16 Additional Counsel Listed on Next Page
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`17
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`18
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`19
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`SUPERIOR COURT OF CALIFORNIA
`
`IN AND FOR THE COUNTY OF SAN FRANCISCO
`
`Case No. CGC-20-587266
`
`22
`
`Plaintiffs,
`
`20 BENJAMIN VALDEZ, HECTOR
`
`
`CASTELLANOS, WORK.SAFE, AND
`21 CHINESE PROGRESSIVE ASSOCIATION,
`
`APPLICATION TO FILE AMICUS
`
`CURIAE BRIEF REGARDING
`
`PLAINTIFFS' EX PARTE APPLICATION
`FOR TEMPORARY RESTRAINING
`ORDER
`
`vs.
`
`23
`24 UBER TECHNOLOGIES, INC., a Delaware
`
`
`corporation; UBER USA, LLC, a Delaware
`Date: October 28, 2020
`
`25 limited
`
`
`
`liability company; RASIER, LLC, a
`Time: 11 :30 a.m.
`
`
`
`
`Delaware limited liability company; and
`
`Place: Dept. 302
`
`
`26 RASIER-CA, LLC, a Delaware limited
`
`
`
`
`liability company,
`
`Judge: Honorable Richard Ulmer
`
`27
`
`28
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`Complaint Filed: October 22, 2020
`
`
`
`Defendants.
`/ Trial Date: None Set
`---------------
`
`APPLICATION TO FILE AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
`
`
`

`

`1 LEONARD CARDER, LLP
`AARON KAUFMANN, SBN 148580
`2 1999 Harrison Street, Suite 2700
`Oakland, CA 94612-3500
`3 Telephone: (510) 272-0169
`4 akaufmann@leonardcarder.com
`Nayantara Mehta, SBN 244949
`5 NATIONAL EMPLOYMENT LAW PROJECT
`6 2030 Addison Street, Suite 420
`Berkeley, CA 94704
`7 Tel.: 510-663-5707
`nmehta@nelp.org
`8 Attorneys for amicus curiae Bet Tzedek, National
`g Employment Law Project, California Employment
`Lawyers Association, Women's Employment Rights
`10 Clinic of Golden Gate University School of Law,
`Partnership for Working Families, and Asian
`11 Americans Advancing Justice -Asian Law Caucus
`12 *With contributions from Bet Tzedek legal fellow Joe Meeker.
`13
`14
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`15
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`16 17
`18
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`20 21
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`26 27
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`28
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`APPLICATION TO FILE AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
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`

`

`1 TO THE HONORABLE RICHARD ULMER, JUDGE OF THE SUPERIOR COURT:
`2
`Bet Tzedek, National Employment Law Project, California Employment Lawyers
`3 Association, Women's Employment Rights Clinic of Golden Gate University School of Law,
`4 Partnership for Working Families, and Asian Americans Advancing Justice -Asian Law Caucus
`5 hereby request leave of the court to file the amicus brief attached as Exhibit A in support of the
`6 Plaintiffs' motion for a temporary restraining order in this case. The brief has not been funded or
`7 authored by any party to this action and attorneys for the Amici have requested the Defendant's
`8 consent to file this application and brief.
`9
`IDENTITY AND INTEREST OF THE AMICI
`10
`Amici are prominent non-profit organizations that research and advocate for the rights of
`11 workers in our society at the national, state, and local levels. Our work in this arena is broad,
`12 spanning the direct representation of low-wage workers laboring under dangerous and unlawful
`13 conditions, to enhancing local and state workers' rights laws, to shaping the national policy
`14 debate. Yet what has united us here in common cause is the treatment of workers misclassified
`15 as independent contractors. Amici have consistently advocated for the rights of misclassified
`16 workers, including urging for the passage and implementation of A.B. 5 and the longstanding
`17
`rights and protections under California's Labor Code.
`Bet Tzedek -Hebrew for the "House of Justice" -was established in 1974, and provides
`19 free legal services to seniors, the indigent, and the disabled. Bet Tzedek represents Los Angeles
`20 County residents on a non-sectarian basis in the areas of housing, welfare benefits, consumer
`21 fraud, and employment. Bet Tzedek's Employment Rights Project assists low-wage workers
`22
`through a combination of individual representation before the Labor Commissioner, litigation,
`23
`legislative advocacy, and community education. Bet Tzedek's interest in this case comes from
`24 over 15 years of experience advocating for the rights of low-wage workers in California. As a
`25
`leading voice for Los Angeles's most vulnerable workers, Bet Tzedek has an interest in ensuring
`26
`that workers are able to exercise their political freedoms. Bet Tzedek believes that employer
`27 coercion prevents workers from advocating for their own interests. Free and fair participation in
`28
`the political process is a necessary precondition for employees to be able to seek fair wages,
`
`18
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`APPLICATION TO FILE AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
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`

`

`13
`
`1 secure adequate working conditions, and build worker power.
`2
`The National Employment Law Project ("NELP") is a nonprofit legal organization with
`3 more than fifty years of experience advocating for the employment and labor rights of underpaid
`4 and unemployed workers. For decades, NELP has focused on the ways in which various work
`5 structures, such as mislabeling workers "independent contractors," exacerbate income and wealth
`6
`inequality, the segregation of workers by race and gender into poor quality jobs, and the ability of
`7 workers to come together to negotiate with business over wages and working conditions. NELP
`8 has a California office and has litigated directly and participated as amicus curiae in numerous
`9 cases in California and across the nation, and has provided Congressional and state testimony
`10 addressing the issue of employment relationships and independent contractors, including
`11 misclassification by companies using apps to hire workers and retaliation against workers who
`12 seek to enforce their rights.
`The Partnership for Working Families ("Partnership") is a national federation of
`14
`regional power building organizations. Together with our 20 affiliates and one emerging
`15 coalition, we drive a broad progressive agenda to reshape our built environment to create healthy
`16 communities, remake our democracy by building power through civic engagement, and
`17 restructure our economy to reduce racial and wealth inequality. All too often workers face abuse
`18 and exploitation on the job, experiences that are compounded when employers seek to evade their
`19 responsibilities with subterfuges like independent contractor misclassification. Our affiliates see
`20
`the direct and daily harms this type of misclassification represents, which encompasses loss of
`21 wages, but other vital employee protections that protect the dignity of individuals at work. The
`22 Partnership engages at the nexus of worker organizing and policy advocacy and understands on a
`23 fundamental level the necessity for workers to be made whole after the Court's watershed
`24 decision in Dynamex Operations West v. Superior Court and its subsequent codification in
`25 Assembly Bill 5.
`26 The California Employment Lawyers Association (CELA) is an organization of
`27 California attorneys whose members primarily represent employees in a wide range of
`28 employment cases, including individual, class, and representative actions enforcing California's
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`APPLICATION TO FILE AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
`
`

`

`1 wage and hour laws and other workplace protections. CELA has a substantial interest in
`2 protecting the statutory and common law rights of California workers and ensuring the
`3 vindication of the public policies embodied in California employment laws. Many of CELA's
`4 members have championed workplace protections on behalf of workers misclassified as
`5 "independent contractors," including those working for app-based companies. CELA was an
`6 active proponent of A.B. 5, advocating that it extend the protections set forth in the Dynamex
`7 decision across many industries including app-based companies. The organization has taken a
`8
`leading role in advancing and protecting the rights of California workers, which has included
`9 submitting amicus briefs and letters and appearing before this Court in employment rights cases
`10 such as Murphy v. Kenneth Cole Productions, Inc., (2007) 40 Cal.4th 1094, Gentry v. Superior
`11 Court, (2007) 42 Cal.4th 443, Brinker Restaurant Corp. v. Superior Court, (2012) 53 Cal.4th
`12 1004, Iskanian v. CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014), Ayala v.
`13 Antelope Valley Newspapers, Inc., 59 Cal.4th 522 (2014), and Frlekin v. Apple, Inc. 8 Cal. 5th
`14 1038 (2020).
`15
`The Women's Employment Rights Clinic of Golden Gate University School of Law
`16 (WERC) is an on-campus non-profit that serves the dual purpose of training law students and
`17 providing critical legal services to the community. WERC represents low-wage workers,
`18 predominately women and immigrants, through impact litigation, individual representation,
`19 policy advocacy and community education. For more than twenty-five years, WERC has advised
`20 and represented employees misclassified as independent contractors across various industries,
`21
`including rideshare drivers, in actions for unemployment insurance benefits and unpaid wages.
`22
`Asian Americans Advancing Justice -Asian Law Caucus (ALC) was founded in 1972
`23 with a mission to promote, advance, and represent the legal and civil rights of Asian and Pacific
`24
`Islanders, with a particular focus on low-income members of those communities. Advancing
`25 Justice -ALC is part of a national affiliation of Asian American civil rights groups, with offices
`26 in Los Angeles, Chicago, Atlanta and Washington DC. Advancing Justice -ALC has a long
`27 history of protecting low-wage immigrant workers through direct legal services, impact litigation,
`28 community education, and policy work. Advancing Justice -ALC's regular docket includes cases
`3
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`APPLICATION TO FILE AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
`
`

`

`
`
`1 on behalf of rideshare drivers.
`
`
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`2 DATED: October 27, 2020
`
`
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`Respectfully submitted,
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`3
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`/�
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`By:
`Re do Fuentes, SBN 329360
`
`PAR'INERSHIP FOR WORKING FAMILIES
`
`1305 Franklin Street, Suite 501
`
`Oakland, CA 94612
`Tel: 510-281-7555
`rey@forworkingfamilies.org
`
`Dana Hadl SBN 224636
`BETTZEDEK
`
`3250 Wilshire Blvd., I 3th Floor
`Los Angeles, CA 90010
`Telephone: (323) 648-4705
`dhadl@bettzedek.org
`
`Glenn Rothner, SBN 67353
`Jonathan Cohen, SBN 237965
`ROTIINER, SEGALL & GREENSTONE
`510 South Marengo Avenue
`
`
`Pasadena, California 91101
`
`Telephone: (626) 796-7555
`grothner@rsglabor.com
`jcohen@rsglabor.com
`
`LEONARD CARDER, LLP
`AARON KAUFMANN, SBN 148580
`
`1999 Harrison Street, Suite 2700
`
`Oakland, CA 94612-3500
`
`Telephone: (510) 272-0169
`akau:finann@leonardcarder.com
`
`Nayantara Mehta, SBN 244949
`NATIONAL EMPLOYMENT LAW
`PROJECT
`2030 Addison Street, Suite 420
`
`
`
`Berkeley, CA 94704
`
`Tel.: 510-663-5707
`nmehta@nelp.org
`
`Attorneys for amicus curiae Bet Tzedek,
`
`
`
`
`National Employment Law Project, California
`
`Employment Lawyers Association, Women's
`
`Employment Rights Clinic of Golden Gate
`
`
`
`University School of Law, Partnership for
`
`Working Families, and Asian Americans
`
`
`
`Advancing Justice -Asian Law Caucus
`
`
`
`APPLICATION TO FILE AMICUS CURIAE BRIEF CASE NO. CGC-20-587266
`
`4
`
`

`

`EXHIBIT A
`EXHIBIT A
`
`

`

`1 Reynaldo Fuentes, SBN 329360
`PARTNERSHIP FOR WORKING FAMILIES
`2 1305 Franklin Street, Suite 501
`Oakland, CA 94612
`3 Tel: 510-281-7555
`rey@forworkingfamilies.org
`4 Dana Hadl, SBN 224636*
`5 BETTZEDEK
`3250 Wilshire Blvd., 13th Floor
`6 Los Angeles, CA 90010
`Telephone: (323) 648-4705
`7 dhadl@bettzedek.org
`8 Glenn Rothner, SBN 67353
`Jonathan Cohen, SBN 237965
`g ROTHNER, SEGALL & GREENSTONE
`510 South Marengo A venue
`10 Pasadena, California 91101
`Telephone: (626) 796-7555
`11 grothner@rsglabor.com
`jcohen@rsglabor.com
`
`12
`
`Attorneys for amicus curiae Bet Tzedek, National
`13 Employment Law Project, California Employment
`Lawyers Association, Women's Employment Rights
`14 Clinic of Golden Gate University School of Law,
`Partnership for Working Families, and Asian
`15 Americans Advancing Justice - Asian Law Caucus
`
`16 Additional Counsel Listed on Next Page
`SUPERIOR COURT OF CALIFORNIA
`IN AND FOR THE COUNTY OF SAN FRANCISCO
`Case No. CGC-20-587266
`20 BENJAMIN VALDEZ, HECTOR
`CASTELLANOS, WORK.SAFE, AND
`AMICUS CURIAE BRIEF REGARDING
`21 CHINESE PROGRESSIVE ASSOCIATION,
`PLAINTIFFS' EX PARTE APPLICATION
`FOR TEMPORARY RESTRAINING
`Plaintiffs,
`ORDER
`vs.
`24 UBER TECHNOLOGIES, INC., a Delaware
`corporation; UBER USA, LLC, a Delaware
`Date: October 28, 2020
`limited liability company; RASIER, LLC, a
`Time: 11 :30 a.m.
`Delaware limited liability company; and
`Place: Dept. 302
`26 RASIER-CA, LLC, a Delaware limited
`Judge: Honorable Richard Ulmer
`liability company,
`Complaint Filed: October 22, 2020
`Defendants.
`/ Trial Date: None Set
`AMICUS CURIAE BRIEF
`
`----------------
`
`17
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`18
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`19
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`22
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`23
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`25
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`27
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`28
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`CASE NO. CGC-20-587266
`
`

`

`1 LEONARD CARDER, LLP
`AARON KAUFMANN, SBN 148580
`2 1999 Harrison Street, Suite 2700
`Oakland, CA 94612-3500
`3 Telephone: (510) 272-0169
`4 akaufmann@leonardcarder.com
`Nayantara Mehta, SBN 244949
`5 NATIONAL EMPLOYMENT LAW PROJECT
`6 2030 Addison Street, Suite 420
`Berkeley, CA 94704
`7 Tel.: 510-663-5707
`nmehta@nelp.org
`
`8
`
`9
`
`Attorneys for amicus curiae Bet Tzedek, National
`Employment Law Project, California Employment
`Lawyers Association, Women's Employment Rights
`
`Partnership for Working Families, and Asian
`
`10 Clinic of Golden Gate University School of Law,
`11 Americans Advancing Justice - Asian Law Caucus
`12 *With contributions from Bet Tzedek legal fellow Joe Meeker.
`13 14
`15
`16 17
`18
`19
`20 21
`22
`23 24
`25 26
`27 28
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`AMICUS CURIAE BRIEF
`
`CASE NO. CGC-20-587266
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`

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`1
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`2
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`3 I.
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`4
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`TABLE OF CONTENTS
`Page(s)
`INTRODUCTION ................................................................................................................. 1
`A.
`Casting a free, uncoerced vote is a fundamental right that must be protected .......... 2
`Uber drivers are employees for the purposes of the Labor Code .............................. 4
`B.
`Uber drivers are protected from politically coercive messages under Labor Code
`C.
`Sections 1101 and 1102 ............................................................................................. 5
`D.
`Employer coercion is a significant problem, and Uber's messages are particularly
`coercive ..................................................................................................................... 8
`1.
`Employer coercion is a significant issue that is growing
`more widespread ............................................................................................ 8
`2.
`Uber's messaging assault is particularly coercive ......................................... 9
`
`AMICUS CURIAE BRIEF
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`CASE NO. CGC-20-587266
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`

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`TABLE OF AUTHORITIES
`
`Page(s)
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`Ali v. L.A. Focus Pub. ,
`
`4
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`Bartlett v. Strickland,
`
`g Gay Law Students Assn. v. Pac. Tel. and Telegraph Comp,
`
`10
`
`Gould v. Grubb,
`
`1
`2
`3 Cases
`112 Cal.App.4th 1477 (Court of Appeal, Second District, Oct. 31, 2003) ................................. 7
`5
`6
`556 U.S. 1 (2009) ........................................................................................................................ 2
`7 Burson v. Freeman,
`504 U.S. 191 (1992) .................................................................................................................... 2
`8
`24 Cal.3d 458 (1979) ......................................................................................................... 5, 6, 10
`11
`14 Cal.3d 661 (1975) ............................................................................................................. 2, 13
`12 Kusan Mfg. Co., a Div. of Kusan v. NL.R.B. ,
`749F.2d362(6thCir.1984) ..................................................................................................... 11
`13
`14 Lockheed Aircraft Corp. v. Superior Court,
`28 Cal.2d 481 (1946) ............................................................................................................... 2, 7
`15 Longwood Sec. Servs., Inc. ,
`16
`364NLRBNo.50(2016) .......................................................................................................... ll
`17 McIntyre v. Ohio Elections Comm 'n,
`514 U.S. 334 (1995) .................................................................................................................... 3
`395 U.S. 575 (1969) .............................................................................................................. 9, 12
`Case No. 37-2019-00048731-CU-MC-CTL (Feb. 13, 2020) .................................................. 4, 5
`377 U.S. 533 (1964) .................................................................................................................... 4
`23
`24 Rogers v. Lyft, Inc. ,
`Case No. 3:20-cv-01938-VC (N.D. Cal. Apr. 7, 2020) ............................................................... 5
`16 Cal.2d 197 (1940) ................................................................................................................... 3
`26
`27 Yick Wo v. Hopkins,
`118 U.S. 356 (1886) .................................................................................................................... 2
`
`18
`
`1g NLRB v. Gissel Packing Co. ,
`
`People v . Maple bear, Inc. ,
`
`2 0
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`2 1
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`22 Reynolds v. Sims,
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`25 Scott v. Kenyon,
`
`28
`
`II
`AMICUS CURIAE BRIEF
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`CASE NO. CGC-20-587266
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`

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`2 California Labor Code
`
`§ 96(k) ········································································································································· 6
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`§ I I O I ....................
`passim
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`§l l0 I (b) ................................................................................................................................... 1 1
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`§ 11 02 .................................................................................................................................
`passim
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`§ 2775 et seq . ............................................................................................................................... I
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`.............................................................................................................
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`1 Statutes
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`3
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`4
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`5
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`6 Other Authorities
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`of millions have been spent on Prop. 22. 7 George Skelton, "It's no wonder hundreds
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`A lot is at stake," LA Times (Oct. 1 6, 2020, 1 2 :00AM) ............................................................. 1
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`8
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`The Guardian, "California 'shattering prior election returns' with 6m ballots already
`
`2
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`
`
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`........................................................... 9 cast," (Oct. 24, 2020, 3 :00PM) ...........................................
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`10 Suhauna Hussain, "What Prop. 22's defeat would mean for Uber and Lyft- and
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`
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`drivers," LA Times (Oct. 1 9, 2020) ................................................................................... 3 , 1 1 , 1 2
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`1 1
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`Sushana Hussain, "Uber, Lyft push Prop. 22 message where you can't escape it: your
`
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`12
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`phone" LA Times (Oct. 8, 2020) ................................................................................................... 8
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`13 Sionag Renner,
`California's Controls on Employer Abuse of Employee Political
`
`6
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`
`
`
`Rights, 22 Stan. L. Rev. 1 0 1 5, 1 024 (1970) ...................................................................................
`1 4
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`15 Restatement of Employment Law (201 5)
`6
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`§ 7.08(b) .......................................................................................................................................
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`16 § 7.08(f) ........................................................................................................................................
`7
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`17 John Myers and Taryn Luna, "In Prop. 22, app-based companies ask voters to resolve
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`what lawmakers would not," LA Times (Oct. 21, 2020) ................................................................ 7
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`18
`
`Harvard Law Review,
`Citizens United At Work: How the Landmark Decision
`
`
`19
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`
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`Legalized Political Coercion
`
`in the Workplace, 128 Harv. L. Rev. 669, 679 (2014) ................. 8, 9
`
`20 Paul M. Secunda, Addressing
`
`Political Captive Audience Workplace Meetings in the
`
`120 Yale L.J. 1 7 (201 0) ........................................................
`8
`
`Post-Citizens United Environment,
`2 1
`
`22 Alexander Hertel-Fernandez & Paul Secunda,
`
`Citizens Coerced: A Legislative Fix for
`
`
`
`United, 64 UCLA L. Rev.
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`Workplace Political Intimidation Post-Citizens
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`
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`Discourse 2, 8 (2016) ............................................................................................................. 8, 1 0
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`23
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`24 Alexander Hertel-Fernandez, "Employers are increasingly using their workers as
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`lobbyists. Here's why that's a problem," Vox (Mar. 29, 201 8) ................................................. 8, 9
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`25
`The Emergence of Employee "Who Owns Your Politics? 26 Alexander Hertel-Fernandez,
`
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`
`Mobilization as a Source of Corporate Political Influence," New America (July
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`8, 9 27 201 5) ········································································································································
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`The 28 Charlotte Garden, "The Boss Can Tell You to Show Up for a Trump Rally,"
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`iii
`AMICUS CURIAE BRIEF
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`Atlantic (Aug,._9,.2019) ................................................................................................................. 9
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`CASE NO. CGC-20-587266
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`Greg Fox, "Orlando worker fired after speaking out about letter that warned employees
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`1
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`oflayoffs ifBiden wins," WESH2 (Oct. 22, 2020) ....................................................................... 9
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`2 Sara Ashley O'Brien, "Instacart provided some contract workers with stickers and
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`their fate," CNN that decides 3 fliers promoting controversial ballot measure
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`(Oct. 1 3, 2020) ........................................................................................................................... 1 0
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`Ken Jacobs and Michael Reich, "The Uber/Lyft Ballot Initiative Guarantees only $5.64
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`5 an Hour," UC Berkeley Labor Center (Oct. 3 1 , 201 9) ................................................................ 1 1
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`6 Sara Ashley O'Brien, "The $ 1 85 million campaign to keep Uber and Lyft drivers as
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`contractors in California," CNN (Oct. 8, 2020) ........................................................................... 1 2
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`drivers as 8 Andrew J. Hawkins, "Uber and Lyft lose appeal, ordered again to classify
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`employees," The Verge (Oct. 22, 2020) ...................................................................................... 1 2
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`Dara Khosrowshahi "The High Cost Of Making Drivers Employees," Uber (Oct. 5,
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`1 1 Jeremy B. White, "Many Uber and Lyft drivers now rely on the work as their primary
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`income source, report finds," The Independent (May 30, 201 8) .................................................. 1 3
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`AMICUS CURIAE BRIEF
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`CASE NO. CGC-20-587266
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`1 I.
`INTRODUCTION
`2
`This case comes before the court under atypical circumstances. Along with four of the
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`largest app-based corporations in the world, Uber Technologies, Inc. (hereafter Uber or
`4 Defendant) has committed $52 million 1 to pass Proposition 22,2 a statutory ballot initiative
`5 designed to undo Assembly Bill 5 (legislation that made it harder for corporations to misclassify
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`their workers as independent contractors in California).3 In response to this democratically-
`7 enacted law, these app-based companies have begun employing ever more brazen tactics to reach
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`their workers-as voters. If this were any other company, its support for a favored political and
`9 policy outcome would be an unremarkable exercise of its own free speech in a heated election to
`10 undo the legislature's action.
`1 1 Yet what is remarkable-and so ably documented in the complaint in this case-is the
`12 unprecedented use of politically-coercive messages directed at Uber drivers while they are on the
`13 job. See Complaint, ,r,r49-63. Uber's drivers are bombarded with propaganda designed by Uber
`14 for the express purpose of influencing their vote on Proposition 22, as the drivers are working and
`15 on the Uber app, and collecting information on how they will vote on the initiative, while
`16 simultaneously communicating that a "No" vote on the initiative will lead to the driver's likely
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`termination. Id. at ,r,r 42-48.
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`Since 1915, California has rightly included protections in the law to precisely address this
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`type of politically-coercive behavior by employers. See Cal. Lab. Code § § 1101-02. Without
`20 relief, these drivers will continue to have their right to be free from coercive or directive political
`21 speech from their employer while on the job jeopardized, which not only takes away an
`2 2 employee's autonomy, but undermines free and fair participation in the upcoming election.4
`1 George Skelton, "It's no wonder hundreds of millions have been spent on Prop. 22. A lot is at
`24 stake," LA Times (Oct. 16, 2020, 12:00AM), https://tinyurl.com/SkeltonLATimes.
`2 Styled the Protect App-Based Drivers and Services Act (A.G. No. 19-0026), proposed Cal. Bus.
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`& Prof. Code§§ 7448-67 and Rev. & Tax. Code§ 17037.
`26 3 Assembly Bill 5 (Gonzalez), Ch. 296, Reg. Sess. (2019-2020). Assembly Bill 5 was recently
`repealed and recodified by Assembly Bill 2257, Ch. 38, Reg. Sess. (2019-2020) (codifying
`27 substantially similar protections in Labor Code§ 2775 et seq.).
`4 Indeed, with close to a third of registered voters already returning their ballots, it is imperative
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`that this court act to ensure the integrity of the choices made regarding Prop 22. See The
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`23
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`AMICUS CURIAE BRIEF
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`CASE NO. CGC-20-587266
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`

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`1 Unfortunately, Uber's actions here are not unique. In recent years, an increasing number of
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`2 employees across the nation have been subjected to some form of political coercion from their
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`3 employer.
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`4
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`Amici have joined together on this brief as we have combined many decades of experience
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`5 advocating for and protecting workers' rights nationally and in California. We add our voices to
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`6 this dispute not only given the urgent nature of Prop 22 but because we believe that workers
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`7 should be free of employer coercion that ties their personal political decisions to access to a job.
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`8 Thus, this brief will help the court in resolving this matter by adding depth to the conversation
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`9 regarding the rights and prohibitions in the labor code, the growing phenomenon of workplace
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`1 0 coercion, and the history of this type of repeated behavior by the Defendant.
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`1 1
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`1 2
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`A.
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`Casting a free, uncoerced vote is a fundamental right that must be protected.
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`"The right to ballot would be endangered if citizens were deprived of any incidents of that
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`1 3 right or if they were hampered in their advocacy of or opposition to measures which may be
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`1 4 placed upon the ballot." Lockheed Aircraft Corp. v. Superior Court, 2 8 Cal.2d 48 1 , 486 (1 946).
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`1 5 Both the California and United States Supreme Court have held, in numerous decisions, that the
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`1 6 right to uncoerced political participation is fundamental to our system of government.
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`17
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`Indeed, the right to vote is "one of the most fundamental rights of our citizens." Bartlett v.
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`1 8 Strickland, 556 U.S. 1 , 1 0 (2009). That's because political participation is "preservative of all
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`1 9 rights," Yick Wo v. Hopkins, 1 1 8 U.S. 356, 370 ( 1 886)-including the right to fair wages and
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`20 dignity in the workplace. But the mere ability to cast a ballot is not enough. "A fundamental goal
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`2 1 o f a democratic society i s to attain the free and pure expression of the voters' choice." Gould v.
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`22 Grubb ( 1 975) 14 Cal.3d 66 1 , 677 (emphasis added). To that end, the right to vote includes ''the
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`23 right to cast a ballot in an election free from the taint of intimidation." Burson v. Freeman, 504
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`24 U.S. 1 9 1 , 2 1 1 (1 992). And as discussed below, California has been a leader in recognizing the
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`25 ways in which employers can interfere with that right and providing remedies when they do.
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`26
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`27 Guardian, "California 'shattering prior election returns' with 6m ballots already cast," (Oct. 24,
`28 2020, 3 :00PM) https://tinyurl.com/GuardianBallots.
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`AMICUS CURIAE BRIEF
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`CASE NO. CGC-20-587266
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`

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`1
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`Critical to the free exercise of the franchise is a voter's right to keep their decisions on the
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`2 ballot confidential. The California Supreme Court has observed that "[the] right to a secret ballot .
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`3
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`. . is the very foundation of our election system." Scott v. Kenyon ( 1 940) 1 6 Cal.2d 1 97, 201 . If
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`4 one is obligated to disclose the content of their vote, they may open themselves to further
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`5
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`intimidation or even retaliation. Thus, if employees are to have a full, free choice come election
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`6 day, employers must not obligate their employees to disclose their political decisions.
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`7
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`Although Uber has not yet inquired into how their workers have voted, they have
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`8 repeatedly obligated their employees to tell them how they will vote. As Plaintiffs demonstrate
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`9
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`(see Complaint ,r,r 52-57), Uber has repeatedly solicited its drivers for information about whether
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`1 0 they Support Proposition 22 and how they plan to vote on the measure. These surveys and forms
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`1 1 cannot be ignored: given Uber's ability to connect survey data directly to its drivers, along with
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`1 2 Uber's clear support for the measure, drivers may reasonably believe that a non-answer is
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`1 3 tantamount to revealing a driver's views on the measure. No matter what, an Uber employee is
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`1 4 obligated to reveal something about their intended vote to their employer. In doing so, Uber has
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`1 5 violated the "respected tradition of anonymity in the advocacy of political causes," and with it, the
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`1 6 "right to vote one's conscience without fear of retaliation." McIntyre v. Ohio Elections Comm 'n
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`1 7 (1 995) 5 1 4 U.S. 334, 343 .
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`18
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`The vote on Prop 22 is less than two weeks away. Uber's employees are preparing to cast
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`1 9 an extremely meaningful vote, on a measure that could have life-altering consequences for
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`20 themselves, their families, and their coworkers. And this vote is especially important because
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`2 1 Proposition 2 2 i s essentially irrevocable. It would require an "unheard of' 7/8ths majority o f the
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`22 State Legislature to amend or overturn, a threshold many think is essentially impossible to meet. 5
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`23 This may be the only opportunity for drivers to cast a meaningful vote on this issue that directly
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`24
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`impacts their earnings potential.
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`Accordingly, Uber here seeks to frustrate the exercise of a fundamental right of its drivers
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`26 who rely on Uber to make a living. Uber is actively impeding its employees from casting a free,
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`5 Suhauna Hussain,"What Prop. 22's defeat would mean for Uber and Lyft - and drivers,"