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The Spoon

Daily news and analysis about the food tech revolution

AB5

Uber Eats Is Not Bailing On California

California imposed an order this week that, for a minute there, led us all to believe Uber’s food delivery business in that state was on the rocks.

Spoiler alert: it’s totally not.

Recap: On Monday, a California judge issued a preliminary injunction ordering that Uber (along with Lyft) reclassify its drivers as employees in keeping with the state’s AB5, which was signed into law in January. Uber CEO Dara Khosrowshahi then took to the airwaves to tell us all the company will likely have to temporarily shut down service in California if the court does not overturn the ruling.

As is usually the case when we talk about third-party delivery services, there’s fine print, which Eater SF promptly dug up. An Uber spokesperson confirmed to the publication that the shutdown would only apply to the company’s rideshare business, and that Uber Eats — now Uber’s biggest business — would continue “as is.”

I can’t really think of a better way of putting it than in Eater writer Eve Batey’s own words: “Uber’s threat to take their ball and go home if forced to comply with California law really only applies to a ball that, right now, isn’t the one that the other kids want to play with all that much.”

Eats currently generates more revenue than Rides, according to Uber’s second-quarter earnings report. That makes sense, seeing as the world has been in a pandemic-induced lockdown of late, and even with restrictions lifting in places, average consumers are just not going out as much. They are, however, ordering a ton of delivery meals from restaurants. Gross bookings for Eats were $6.96 billion in Q2, which was up 113 percent year-over-year and up 54 percent over Q1 2020.

Uber also recently struck a $2.65 billion deal to acquire fellow third-party delivery company Postmates — a service that just happens to be number one in Los Angeles, a city that just happens to be the second most populated one in the U.S. Yanking the plug on California, even temporarily, would make the deal pointless. Uber might have ethical flaws in its business model, but its leaders aren’t dumb.

Besides, they’ll get a chance to continue the fight to keep its delivery drivers and couriers as contract workers come November, when Californians vote on Proposition 22, which would exempt rideshare and delivery drivers from being considered employees. Needless to say, tech companies are all-in on this one.

But if regulators continue to scrutinize third-party delivery practices, and consumers continue to rely on off-premises meals while restrictions around in-house restaurant dining room remain in place, it seems only a matter of time before Uber et al. go from the frying pan to the fire with food delivery. 

Maybe then we can take eloquently worded threats to shut down seriously. 

Accelerating the Drive Thru

Of late, there’s been much ado about the drive-thru, with major restaurant chains like Shake Shack and Chipotle all announcing an increased focus on the format.

So it wasn’t too surprising this week to get new data showing the drive-thru is far and away the most popular restaurant “experience” among consumers. A new survey from Bluedot and research firm SeeLevel HX found that 74 percent of respondents said they have visited the drive-thru “the same amount or more often than usual” compared to 43 percent in April. Those consumers surveyed also named drive-thru “the safest” of the to-go formats polled in the report.

It’s all a bit of a no-brainer if you ask me. If you’ve hung around inside a restaurant lately waiting for your pickup order, you’ll know the experience is often tense and confusing. Meanwhile, curbside pickup is still so new for most restaurants that operational kinks have yet to be worked out. That makes drive-thru, a decades-old format, seemingly the safest and fastest way to collect your grub at a time when dining at a restaurant is a no-go for many consumers.

But drive thrus could be faster. A lot faster. In this week’s survey, 81 percent said waiting more than 10 minutes in the drive-thru is too long.

As mobile ordering increases in restaurants and more chains reformat their brick-and-mortar locations to accommodate drive-thru, speed of service will need to be at the top of the priority list.

Restaurant Tech ‘Round the Web

  • A new survey by Oracle Food and Beverage found that 59 percent of U.S. consumers and 47 percent in the U.K. “plan to dine-out as soon as they are able.” Forty percent in the U.S. and 39 percent in the U.K. would feel “safer” using a digital menu from their own device. Another 35 percent in the U.S. and 31 percent in the U.K. had similar feelings about digital payments. 
  • Mobile platform Mad Mobile has acquired restaurant tech company CAKE, best known for its POS system. Mad Mobile hopes to use the acquisition to create a next-gen POS designed for mobile-first restaurant experiences. 
  • For more on the future of ridesharing, which is usually an indicator of what’s to come for food delivery, check out this podcast from Axios Re:Cap. 

This is the web version of our newsletter. Sign up today to get updates on the rapidly changing nature of the food tech industry.

Updated: California Judge Orders Uber and Lyft to Reclassify Drivers as Employees

UPDATE: Uber CEO Dara Khosrowshahi said the company would probably shut down operations in California temporarily if this week’s ruling is not overturned. However, that would only apply to the company’s rideshare business. An Uber spokesperson confirmed to Eater that the company “has no plans to cease California operations of Uber Eats.”

PREVIOUSLY:

A California judge late Monday ordered that Uber and Lyft must reclassify their drivers as employees. This preliminary injunction is stayed for 10 days, during which time Uber and Lyft can file an appeal. Both companies have said they will do so.

This week’s order comes after California Attorney General Xavier Becerra and city attorneys in California sued Uber and Lyft in May for allegedly treating their workers as contractors. The suit alleged that these companies were in violation of AB5, which went into effect in January of this year. Under the law, gig economy workers (including food delivery couriers and drivers) must be classified as employees and given access to benefits like sick leave, unemployment, and workers comp.

Uber, Lyft, and other gig worker companies have already funneled substantial resources into challenging AB5. In December of 2019, Uber and Postmates filed a complaint (which was later rejected) alleging the law violates constitutional rights. DoorDash, along with Uber and Lyft, has vowed to spend millions to get a ballot measure in 2020 that would counteract AB5. And these tech companies have argued ad nauseam that their workers want to be independent contractors and that their services are exempt from the law on the grounds that they are platforms, not transportation companies. 

California Superior Court Judge Ethan Schulman wrote in this week’s ruling that such logic “flies in the face of economic reality and common sense… To state the obvious, drivers are central, not tangential, to Uber and Lyft’s entire ride-hailing business.”

That third-party food delivery services stand on the same side of the AB5 argument as rideshare companies is no surprise. The third-party delivery model relies on workers to transport food from restaurants to customers’ homes. Having to pay workers things like health benefits and paid sick leave would undercut the entire third-party delivery model, adding extra costs for the likes of Uber and DoorDash, and ultimately slowing their still-elusive path to profitability. 

Uber went as far as to say that if this week’s injunction stands, it may have to exit California. Assuming that would apply to both its rideshare business and its Eats operation, that would erode the company’s recent deal to acquire Postmates, a service that’s most popular on the west coast. 

No other state has yet moved so aggressively to get gig workers reclassified. But thanks to COVID-19, much light has been shed on workers’ access to things like health benefits or even paid sick leave and unemployment during a global crisis. In March, a New York Court ruled that Postmates couriers are employees and therefore eligible for unemployment. In the same month, Instacart revamped its benefits for drivers after workers threatened to strike.

You can read this week’s ruling in full here. If it stands, and Uber and Lyft are unsuccessful in their appeals, the order could have a ripple effect across other states in the U.S.

Troubled Food Delivery Service Waitr Shifts Drivers From Hourly to Contract Workers

Food delivery service Waitr said this week it is shifting its model so that drivers are classified as contract workers rather than hourly ones, according to KATC.

Under the new policy, Waitr drivers will get paid per delivery rather than by the hour. Companies paying contract workers aren’t legally required to offer benefits or withhold taxes, something Waitr must do under its current employee model.

For a long time, the service stood by its policy of paying drivers hourly and categorizing them as W-2 employees. Waitr founder and former CEO Chris Meaux was positive about the model when he spoke to The Spoon last year: “Efficient employees are much less expensive,” he said, adding that, “If you manage the driver flee right and you schedule the drivers when you need them, [you] can do it with a fraction of the drivers that [competitors] require.”

That tactic doesn’t appear to be paying off, however. KATC obtained an email Waitr sent to drivers that frames the change, which will take place in April, as a positive one, though it’s hard to buy that pitch looking back through Waitr’s activity over the last several months. 

The service, which went public in 2018, outraged customers and restaurant partners alike last year when it introduced a new “performance-based” fee structure for restaurants. Protests ensued. 

The company has also done three rounds of layoffs since June 2019, with the most recent one being last week. The company was for a time in danger of being delisted from the Nasdaq, and one report from October stated the company only has enough cash to run through March of 2020.

Waitr has seen its fair share of role changes, too. Meaux stepped down as CEO in August of 2019. He was replaced by Adam Price, who resigned at the end of December and was replaced by Carl Grimstad. Waitr’s CFO, Jeff Yurecko, also resigned, as have two board members.

Considering that glut of bad news, reclassifying its workers as contract rather than hourly seems less the positive change Waitr is trying to spin and more a desperate scramble to cut costs and try to save the struggling company. It’s doubtful that will be enough to save the company.

The switch also comes at a time when talk of how gig economy workers get classified is loud. California’s Assembly Bill 5, which reclassifies gig workers as employees rather than contract workers, was signed into law last year, though it’s getting significantly pushback from delivery companies.