This post is part of SAQ week, celebrating a special issue of the Southern Atlantic Quarterly on Law and the Critique of Capitalism.
“Are you okay? Can I send you money?” I texted Hope.
I finally heard from her a few minutes before midnight. “I’m safe now. He drunk himself to sleep. I got back in. I’ll be safe tonight.”
I responded, “You have to get out of there. I’m sending you money. Go to a motel.”
“No please don’t,” she texted. “If I don’t get my unemployment check by Friday, I’ll let you know. And if it doesn’t come, I’ll drive.”
We seem to have already forgotten the extent to which the COVID-19 pandemic made clear the outrageous inequities embedded within and manifested by the laws that structure our political economy. And when I say “we,” I largely mean members of the elite—the lawmakers, the academics, and other members of what Barbara and John Ehrenreich famously called the professional managerial class. The poor, by contrast, are unlikely to have forgotten the moment they became legally “essential.” For the farmworkers compelled by law to keep picking fruit, the logistics drivers who had to keep delivering, and the meatpacking workers who died by the dozen, the pandemic made clear that society saw their labor as indispensable but their lives as expendable.
Like millions of app-deployed workers in the United States during the terrifying months of lockdown, my friend Hope found herself in a particularly dire situation. Her employer, Lyft, treated her as an independent contractor—a micro-entrepreneur who didn’t have any control over how much she charged per fare or what fares she was allocated. And the state of California, despite a recent law (AB5) clarifying her status as an employee, had neglected to enforce her rights. As a result of the technology industrialists’ refusal to abide by the basic rights accorded workers, and the state’s refusal to care, she was rendered essentially dispossessed: rhetorically celebrated for her labor while disproportionately exposed to poverty, disease, and death.
Hope had recently been evicted by her new landlord—a developer in gentrifying Sacramento. And because of her erratic income as a Lyft driver and the tight housing market, she hadn’t been able to find a new home. When the pandemic hit, she was sleeping in state campgrounds. And when those shut down, Hope had ended up in her abusive father’s home. On the evening of March 28, 2020, nine days after California’s Covid-19 lockdown orders had been issued, he had kicked Hope out, in an unprovoked violent rage, and took the keys off her key chain.
What Hope didn’t know that night was that her (mis)classification by Lyft as an independent contractor was going to, at best, severely delay, or, at worst, prevent her from receiving an unemployment insurance check. Media reports indicated that ride-hail demand had plummeted; no one was going anywhere. Even if Hope tried to work, she would lose, not make, money. Her newly anointed status as an “essential” worker did not guarantee her access to even the most rudimentary social safety net.
How did this cruel paradox become possible? How are we to make sense of this legal contradiction and the antagonistic terms of the law in the lives of on-demand workers during this moment of extreme crisis?
A classically materialist explanation might see the law in this instance as a tool of the elite to create and maintain inequality. In this making, lawmakers and state officials who created and administered the laws of employment can be seen as working in the interest of powerful (tech) capitalists, regulating and maintaining a (racialized) proletariat who can keep the bourgeoise alive and well (even through crises).
This is an enticing explanation, but it does not uncover how the condition of being essentially dispossessed became tolerated and even normalized during this time. Nor, as an empirical matter, is it accurate. The administration of unemployment insurance during the pandemic, for example, involved the decisions of low-level state bureaucrats who were themselves often from precarious backgrounds. Many high-level California state officials, including both the Labor Secretary and the Labor Commissioner, came to government through public interest careers in which they zealously fought for the rights of low-wage workers. These officials were publicly sympathetic to the plight of ride-hail drivers like Hope. Why, then, did they allow this paradox to persist?
In a recent article, I argue that the law’s fragmented processes over the past decade left workers with unresolved, contradictory, and arbitrary outcomes regarding their access to the safety net. This, in turn, generated a mystification around employment status. The central question of whether low-income workers who labored for well-financed corporate entities should have access to work rights was confounded by divergent legal outcomes and contradictory legal analyses over time. Together with the novelty of app-deployed work and the façade of innovation, the law’s processes obscured the material conditions of poverty, insecurity, despair, and disease that workers faced. Work law and its uneven adjudication over these years manufactured consent around the kinds of extralegal precarities created by labor platform companies like Lyft and Uber.
Hope, like many other driver activists, believed, based on knowledge acquired through their activism, that they were entitled to unemployment insurance. Despite being affirmatively told by the companies that they were ineligible, they applied anyway, and subsequently faced the burden of navigating an opaque and overwhelmed bureaucratic system. What she eventually received from the California Employment Development Division (EDD)—the administrative body that oversees unemployment insurance claims—was a letter claiming her award was $0. The EDD, the letter indicated, had no record of her wages because Lyft had refused to report them. Panicked, Hope reached out to other drivers in Rideshare Drivers United—a group of self-organized on-demand workers in California. Everyone had received, or would soon receive, the same letter.
As Hope and others tried to decipher the EDD appeals process, Congress passed a stimulus bill called the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Uber and Lyft quickly reached out to their workforce by email, celebrating the CARES Act as a coup of their own devising, and claimed that its passage meant that drivers could receive a temporary emergency benefit called pandemic unemployment assistance (PUA), which was to be provided by the federal government to independent contractors.
But the differences between state unemployment insurance and PUA were stark. PUA provided an award based off net earnings (Cares Act section 2102(d)(1)), while state unemployment insurance was based on gross income. Under standard unemployment insurance, a ride-hail driver with a gross income of $45,000 per year could receive the maximum unemployment insurance benefits of $450 per week. Under PUA, because of the high rate of expenses and fees associated with driving for Uber and Lyft, that same worker might only get $200 per week. Workers could also only access PUA if they could attest to being underemployed or unemployed for a COVID-19 related reason, making drivers concerned that if they were not ill or immunocompromised, they might still be forced to work, even though there was no work.
Alongside other members of Rideshare Drivers United (RDU), Hope’s response to this cruel paradox—to being essentially dispossessed—was to leverage her situated knowledge about work law and procedure to claim employment, security, and safety. With the help of a legal aid attorney, she navigated the EDD appeals process and together with her comrades, taught others how to do the same. In the course of these struggles, members of RDU built political solidarity with app-deployed workers across the state, including many who previously had not engaged in organizing or agitation to improve working conditions and claim collective power. The majority received some form of insurance—however inadequate—whether through the state process or through PUA. Most, including Hope, struggled, and survived through the support of her friends and fellow drivers, at least one of whom shared his unemployment insurance check.
Without the political will to renew either PUA or unemployment insurance benefits, ride-hail drivers lost their unemployment insurance on Labor Day, September 2021. With the pandemic still raging, many, like Hope, remained unhoused, facing tremendous financial uncertainty. Writing to her fellow RDU drivers the day that her benefits expired, Hope, who had just started to drive again, said, “As I sit at a campsite, having worried all day that my car might break down, I can’t personally think of what more I could possibly lose. And I’m seeing what they’re doing to other drivers…they’ll suffer similar fates [to me]. What should we do? If we don’t get it [employment status], shut it down comes to mind.”
In the face of continued dispossession, Hope’s words echoed the fury and devastation of her fellow workers—as well their collective will to struggle, agitate, and confront the legal contradictions that have been essential to maintaining that dispossession.