An all-time California record of campaign cash has not yet sealed the deal for Lyft and Uber in their campaign to ensure their drivers are not classified as employees.  

You may not have used your Uber or Lyft app much lately, so you might not realize that these days these apps now automatically display in-app ads shilling for the California ballot measure Prop 22 that would ensure drivers could not be classified as employees. This has ramped aggressively in the last couple of days. A Monday night report from KPIX revealed that Uber drivers must click Yes on Prop 22 before accepting a fare. Today we also have news that Uber is now spamming Yes on Prop 22 push notifications to users, just out of the blue.

This is all part of the approaching November 3 election climax to a now more than year-long fight by Uber, Lyft, DoorDash, and their app-based ilk to prevent their drivers from being classified as employees in California. The apps are currently avoiding health care, minimum wage, paid sick leave, and unemployment insurance requirements mandated by the state, and a Yes on 22 vote will enshrine into California law that app-based delivery drivers are not employees. Uber and Lyft have been in legal battles with the state over the matter, and threatened to shut down in California, but the Prop 22 vote on Election Day will, hopefully, resolve the matter once and for all.

With the mountains of cash that DoorDash, Lyft, and Uber have poured into Prop. 22, the measure became the most expensive California ballot measure ever a full month ago. The widely reported $175 million spent exclusively by Uber, Lyft, DoorDash, Postmates and Instacart (no private donors have contributed to the measure) is, as of today, up to $185.8 million, according SFist’s nitpicking through state election filings.

Prop 22 supporters would argue, as the Chronicle did in their endorsement of the measure, that “It does guarantee some new benefits for drivers,” including “120% of minimum wage.” But it’s important to note a very significant devil in those details, as Prop 22’s text actually calls for “a net earnings floor based on 120% of the minimum wage applied to a driver's engaged time.” So they’re making a distinction between ‘engaged time’ versus ‘unengaged time’ — ‘engaged time’ is when the driver has a fare,  ‘unengaged time’ is when the driver is hanging around hoping for a fare to come in.

A bombshell op-ed today on TechCrunch today entitled I’m a software engineer at Uber and I’m voting against Prop 22 is written by a (probably soon-to-be-former) Uber engineer who also makes deliveries, to better understand the driver perspective. The author notes that the Uber model only works because drivers sacrifice substantial amounts of unpaid, volunteer time waiting for a fare, time for which they are not compensated. “It’s become clear to me that this is only possible because countless drivers are spending their personal time sitting in their cars, waiting to pick up a ride, completely unpaid,” says engineer Kurt Nelson. “Workers are subsidizing the product with their free labor.”

A UC Berkeley Labor Center analysis found that about one-third of driver time is unengaged time, and that the so-called 120% of minimum wage is barely five bucks an hour. “After considering multiple loopholes in the initiative, we estimate that the pay guarantee for Uber and Lyft drivers is actually the equivalent of a wage of $5.64 per hour,” the study notes. “Harry Truman was president the last time the inflation-adjusted value of the minimum wage was that low.”

Lyft, Uber, and the other app companies will likely pump $200 million into the Prop 22 effort by the time Election Day arrives. But as we learned last year with Juul’s failed vaping ban measure, all the money in the world cannot guarantee an electoral victory. This may be the case here, as a separate UC Berkeley poll has Prop 22 ahead, but only by a squeaker margin of 39%-36%, and with a sizable 25% still undecided.

So we won’t have a better sense of which way this will go until more voters turn to, how shall we say, ‘engaged time.’

Related: Uber and Lyft Pushed Drivers To Email State Legislators To Oppose Bill That Would Make Them Employees [SFist]

Image: @austindistel via Unsplash