Instacart Defeats Emergency Independent Contractor Reclassification Attempt in San Diego

A California state court denied San Diego City Attorney Mara Elliot’s request for an emergency restraining order application to make all Instacart independent contractors employees.

Temporary restraining orders and independent contractors

Under the application for a temporary restraining order filed on January 29th, all Instacart workers would be reclassified as employees, in line with how rideshare, delivery drivers, and dozens of other former independent contractor positions currently are under the AB 5 law. Elliot challenged that the current system violated the California Unfair Competition Law, saying that using independent contractors instead of employees gave Instacart an unfair advantage over competitors. Elliot has been trying to reclassify Instacart employees since September.

Before Tuesday’s court decision, many Instacart employees had expressed their desire to remain independent contractors.

“If I was an employee, I would have to quit one of my jobs,” said Ryan Cardinale, a waiter from Oceanside who does Instacart work at night. “I mean, all it is is getting other people’s groceries. That shouldn’t be a full-time job. For most of us it is’t a full time job. It’s just something to do at night for extra cash. You know, I’m a waiter. I need this to make ends meet at the end of the month.”

Others cited the similar anti-AB 5 argument of wanting to have flexible hours.

“I can work whenever, which is great,” noted Ashley Breckenridge, who also works for Instacart. “I’m working for a degree online right now, plus I have two kids. A real hourly job with a schedule is out of the question, and I don’t want strangers in my car. Instacart was a perfect option.”

“If they have everyone become employees, I lose that. And I desperately need that openness in a job.”

Instacart and AB 5 repercussions

After the court’s decision on Tuesday, Instacart released a brief press statement saying that they were “pleased with the court’s decision.” The San Diego City Attorney’s Office also released a brief statement to the press conveying that they would continue to push for a “judicial review of Instacart’s exploitation of its workforce.”

Employment experts have said that challenges to expand, contract, and remove AB 5 would happen throughout the year. Currently several petitions and organizations have been set up to oppose AB 5, such as the Protect App-Based Drivers and Services Act. One movement to get a November ballot initiative to overturn AB 5 has reached 37% of the signatures needed. Some exemptions to AB 5 have already been made, such as truck drivers, while other lawsuits have been formed around it, such as the lawsuit made by freelance journalists.

“We’ve seen clear dividing lines,” explained Los Angeles employment specialist Stephanie Schmidt. “Among those employed by industries affected by AB 5, it’s split. People doing these jobs as a full-time job, or damn near it, have been overwhelmingly in favor of being made employees. Those against it generally do these jobs in a part-time basis or to pick up extra money. The stories of people wanting to do this to keep a flexible schedule fall under here.”

“It’s underemployed people wanting benefits and basic employee protections against people doing this as their second or third or forth job, or just doing this as a summer thing or briefly needing a few extra bucks. No matter which side you’re for you’re hurting someone, and that’s never a good position to be in.”

“I can’t speak to if AB 5 was a good thing or not. I can’t say for several reasons. But it’s clear that it’s beginning to find where the walls are and how they can be moved in.”

Tuesday’s San Diego Instacart decision is expected to be challenged by the San Diego City Attorney’s Office again in the near future.