Does Anyone Like AB5 and the ABC Test?

Date:February 16, 2020 7:47 pm

AB5 & THE ABC TEST

DOES ANYONE LIKE AB5 & THE ABC TEST?
By Ward Heinrichs Esq., San Diego Employment Attorney

BIG BLEND RADIO INTERVIEW: On this episode, San Diego employment attorney Ward Heinrichs gives an update on how businesses and freelance workers are retaliating against California’s AB5 Law and ABC Independent Contractor Test. Listen or download the podcast on BlogTalkRadio.com, Spreaker.com, YouTube.com, and SoundCloud.com.

Remember the famously advertised line in the movie Poltergeist II?  The little girl said about the ghosts that haunted her, “They’re back!”  Well, I’ve posted articles, created advertisements, given speeches, and led discussions about AB5, the law that broadly applied the new ABC independent contractor test to the California economy.  Like the ghosts in Poltergeist, “I’m back” with the latest, and it ain’t pretty!

As a refresher, the California Supreme Court ruled nearly two years ago that our Wage Orders required a new test to determine who is, and is not, an independent contractor under the Orders.  It is called the ABC test because it has three elements.  The hiring business must prove all three, or the worker will be an employee.

This is an abbreviated form of the test:

  1. The worker is free from the control of the hirerer.
  2. The worker performs work that is outside the usual course of the hiring entity’s business.
  3. The worker is customarily engaged in an independently established trade, occupation, or business.

Last year, the California Legislature decided to apply that same test to all most all employment laws, not just the Wage Orders.  It also exempted many industries, jobs, and working relationships from AB5 and the ABC test, but some of the exemptions are hard to apply.  Now, many more workers and businesses in various job categories and industries want exemptions or less limiting ones.  In many cases, they are fighting for them!

Uber, Lyft, and DoorDash have started the process of putting an initiative on the ballot.  If passed, it will exempt App-based rideshare and delivery drivers.  You can view the initiative and other information at protectdriversandservices.com.

Uber also recently tweaked its business model.  Now, the Rideshare App will offer a price range for rides, and the driver gets to select the final price!

Uber and Postmates have filed a lawsuit claiming that AB5 violates Equal Protection and Due Process under the Federal and California constitutions.  Essentially, they appear to be saying that the law is unconstitutionally unfair and irrational.

Truckers have convinced a judge to issue a restraining order against AB5 because it arguably violates the Federal Aviation Administration Authorization Act (FAAAA).  That Act prohibits states from interfering with trucking prices, routes, and services.  AB5 may affect all three.

Freelance journalists and photojournalists filed a lawsuit claiming that AB5 violates the Constitutional protections of Free Speech and Freedom of the Press.  As of now, I do not know of any major rulings in that case.

In my practice, I have spoken to many different businesses about AB5.  Most have serious concerns about how that law will affect their business models and drive up costs.  Some of those businesses are in the following industry niches: Court Interpreters, HR Consultants, Hair Dressers, Tattoo Artists, IT Companies, Dance Studios, Yoga Instructors, Personal Trainers, Nursing Consultants, and more.

The legislature has said it will continue to work with certain industries and industry leaders to fix exemptions and potentially add more, but, because the law has been in effect since January 1, certain businesses and workers already feel the pinch.  Many are mad and do not want to wait for the legislature to act.  That is why they are turning to the courts and ballot box.  They do not like AB5!

Based in San Diego, California the Employment Law Office of Ward Heinrichs represents both employers and employees in almost all areas of labor law. He and his firm litigate cases that have been filed in many different parts of California. Visit www.BestEmploymentAttorneySanDiego.com

About the Author:

Based in San Diego, California the Employment Law Office of Ward Heinrichs represents both employers and employees in almost all areas of labor law. He and his firm litigate cases that have been filed in many different parts of California.

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