The Brief

Uber today lost its long-running attempt to overturn a California law that would require it to provide employment rights to its drivers and delivery workers.

The ruling by the 9th U.S. Circuit Court of Appeals could have major implications — depending what the state Supreme Court decides in a separate but related case.

Uber and Postmates, a food-delivery platform Uber now owns, alleged that Assembly Bill 5 violated their rights under the Equal Protection Clause of the state and U.S. constitutions. AB 5 requires ride-hailing and delivery companies to treat their workers as employees instead of independent contractors and codifies the so-called ABC test to determine which workers should receive benefits. Under the law, other gig companies are subject to a different test, which Uber and Postmates claimed was unfair.

The companies sued and sought an injunction against the law that took effect at the beginning of 2020. Last year, a three-judge panel at the 9th Circuit sided with Uber and revived the case, which had been previously dismissed by a federal judge.

But writing for the full 11-judge appeals court today, Judge Jacqueline Nguyen said there are “plausible reasons” for treating Uber differently from other types of companies that use gig workers, such as Wag, a platform that connects dog owners and dog walkers, because the Legislature “perceived transportation and delivery companies as the most significant perpetrators of the problem it sought to address — worker misclassification.”

More than 1.4 million workers in California do app-based driving and delivery work for big gig companies such as Uber, Lyft, DoorDash and Instacart, according to the industry’s latest estimates.

Lorena Gonzalez, chief officer of the California Labor Federation and the former state lawmaker who authored AB 5, said in a statement today: “This is a victory for all workers in the state, but especially the chronically misclassified workers in rideshare and delivery jobs. Now, we must continue to seek ways to enforce this law.”

The ruling means “the Legislature can continue to make laws that impact companies differently if the decision to do so is rational, without being concerned that such laws would violate the constitutional rights of the corporation,” said Veena Dubal, a UC Irvine law professor whose research centers on labor and inequality. “This is particularly important because so many sectors are now concentrated by two or three large companies.”

The decision also is significant because the California Supreme Court in May heard oral arguments in a case challenging the constitutionality of Proposition 22, the initiative the gig industry put on the ballot in 2020, and which a majority of California voters approved. Prop. 22 exempted Uber and other companies such as Lyft, DoorDash and Instacart from AB 5, allowing them to continue to treat their workers as independent contractors while giving them some new benefits they did not have before, such as guaranteed minimum earnings.

Uber is counting on the state’s highest court to uphold Prop. 22, on which it spent more than $57 million out of the about $200 million the gig industry put into the campaign. It contends AB 5 threatens the “flexible work opportunities” that many Californians want.

Theane Evangelis, a lawyer for Uber, in an emailed statement today reiterated the company’s position that “with AB 5 the Legislature unfairly targeted my clients out of animus rather than reason.” Uber had argued that AB 5 has many exemptions for companies that pay workers in different industries. They include live performers, music professionals, real estate appraisers and more.

But William Gould, professor emeritus at Stanford Law School and a former chairman of the National Labor Relations Board, called the opinion “eminently sensible.” Gould said the court “correctly holds that Uber and others may be covered where the Legislature deems them to be disproportionately responsible for inequality in the gig economy.”

If Prop. 22 is upheld, it would be a huge victory for Uber and the other big gig companies, but today’s ruling means they would still be on the hook in any cases where they are found to have violated laws related to worker classification before Prop. 22 took effect. In the appeals court decision, Nguyen referred to “ongoing state enforcement actions seeking retrospective relief, including civil penalties,” against Uber and Postmates.

If Prop. 22 is thrown out, the appeals court ruling means “these companies do not have this case to fall back on to exempt themselves from having to provide basic employment protections,” Dubal said.

The state Supreme Court files its written opinion within 90 days of oral argument, so its decision could come by the end of August.

The Democratic National Committee on Wednesday sued President Donald Trump’s administration for recent television advertisements that promoted his political message while costing taxpayers millions of dollars.

The complaint, filed in the U.S. District Court for the District of Columbia, alleges that the ads are illegal government-sponsored propaganda and accuses Trump of personally directing them. It asks the court to declare the ads illegal and stop the use of federal funds to pay for them.

Trump has faced bipartisan backlash for the ads, which glorify him and echo his campaign pitch as voters cast early ballots with the midterm elections less than a month away.

The spots, which began airing in September, already have cost more than $12 million to run, according to the media tracking firm AdImpact, and a total of $20 million in Homeland Security Department funding has been tapped to pay for them.

Responding Monday to the criticism, Trump defended the ads as “positive promotion for our Great U.S.A.” but said he’d pay for them using his MAGA Inc. super PAC going forward.

But on Tuesday, the fifth ad in the campaign began airing with the notice “paid for by the U.S. Government,” promoting Trump’s military actions in Venezuela earlier this year. The same day, Trump made it clear he hasn’t committed to reimbursing any money that has already been spent, telling reporters “we’ll decide.”

DNC Chair Ken Martin said in a statement that Trump is misusing taxpayer dollars in “a last-ditch attempt to save Republicans in November.”

“Americans deserve better than to have their hard-earned tax dollars used for Trump’s illegal schemes,” he added.

Legal experts have suggested the ads run afoul of a federal statute against congressionally appropriated money being used for “publicity or propaganda,” and potentially other federal laws. The Homeland Security money tapped for the ads comes from a $175 million package Congress gave to the department as part of Trump’s immigration enforcement agenda.

The White House has defended the ads as public service announcements akin to what past administrations have done to promote various policies. Legal experts have said the recent ads differ from many past public service announcements because they aren’t aimed at helping members of the public benefit from specific government programs.

The defendants in the lawsuit — Trump, the White House, DHS and the Office of Management and Budget — didn’t immediately respond to requests for comment.

Fall has only just begun, but it's already time to start thinking about the quintessential winter bug: the flu.

The annual flu season usually starts in October or November. But this year, it looks like the flu started to pick up in early September.

"There are enough signs pointing in the same direction to make me think, 'OK, yes. This is the start of flu season,'" says Caitlin Rivers, an epidemiologist at the Johns Hopkins Bloomberg School of Public Health.

The percentage of people testing positive for the flu in the West has been rising steadily since around the beginning of September, she says. And the number of people showing up in emergency departments because of the flu has also been rising for weeks, she adds.

"It's very uncommon to see flu activity rising this early. It's activity that we might normally see more like November or December," she says.

The timing of the flu season isn't the only thing that's odd. It's also unusual that flu activity seems to have started in Western states, such as California, Washington, Hawaii and Alaska.

"It typically starts in the South and then expands from there," Rivers says. "So two uncommon developments there."

Rivers stresses that the amount of flu activity is still very low in most parts of the country. But that's starting to change as the flu picks up nationwide.

It's unclear why flu activity would have started so early, and in such an unusual part of the country. But one clue might be a new variant that evolved a mutation, which appears to make it better at evading existing immunity, especially among teenagers.

"That's our best argument for what's going on right now in terms of this early flu season," says Dr. Alex Greninger, a virologist who heads infectious disease diagnostics at the University of Washington. Doctors there are seeing as much flu right now as they usually would around Christmas, and the mutated variant appears to be common, he says.

So Greninger, Rivers and others are urging people to think about getting their flu shot earlier than usual.

"It's crucial that people get an influenza vaccine," says Scott Hensley, a virologist at the University of Pennsylvania. "And this might be a year that people might want to get a vaccine early."

But the Centers for Disease Control and Prevention hasn't been promoting flu shots as it usually does. Health Secretary Robert F. Kennedy Jr., who oversees the CDC, is a long-time vaccine skeptic.

"It is disappointing that CDC is quiet given that flu kills of hundreds of kids a year and can result in tens of thousands of hospitalizations and tens of thousands of deaths," says Dr. Demetre Daskalakis, who resigned last year as the director of the National Center for Immunization and Respiratory Diseases at the Centers for Disease Control and Prevention to protest what he called political interference at the agency.

The CDC declined to make an official available to NPR for this story. In a statement, a CDC spokesperson said, "CDC is developing a communications strategy to provide clear, accessible information about influenza vaccination and other critical steps people can take to protect themselves during respiratory virus season. This includes information about the benefits and risks of vaccination to support informed decision-making."
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