The Ninth Circuit Court of Appeals. (Wikipedia)
Uber and Postmates issued an appeal on Tuesday against Los Angeles District Court Judge Dolly M. Gee’s
February refusal to temporarily stop AB 5. The appeal comes after the rideshare and delivery companies decided to pivot their preliminary injunction reasoning from worker classification to how gig and freelance industries affected by AB 5 would enforce the law. The Uber and Postmates filing, which is currently under review in the higher Ninth Circuit Court of Appeals in San Francisco, would reverse the District Court’s decision if successful, effectively temporarily halting AB 5 while the trial takes place.”Both companies are trying to get around the District Court’s decision from last month,” explained Lydia Pastore, a Los Angeles lawyer who currently has AB 5 freelancers as part of her clientele. “And this is interesting because they’re now questioning how AB 5 could possibly enforce everyone. It’s something more to figure out.””There used to be something called an ‘ ABC test‘ to figure out if an employee is an independent contractor or an employee, but now with AB 5 it’s muddled. There’s that question for employees where the line is. For freelance writers for example, it’s 35 articles per publication a year. But where’s the line, and who clamps down on them if it’s a gray area? Like what if there’s a parent company of publications, but one is a half-owned publication. Is it covered? Who decides if it is?””Postmates and Uber are essentially now asking that question. And it’s a good question.”
Currently the appeal also hinges on whether the Appeals Court also recognizes District Judge Gee’s reasoning inn blocking the injunction.
“The balance of equities and the public interest weigh in favor of permitting the State to enforce this legislation,” Judge Gee
said in her ruling. “We cannot second guess the Legislature’s choice to enact a law that seeks to uplift the conditions of the majority of non-exempt low-income workers rather than preserve the status quo for the smaller subset of workers who enjoy independent contractor status.”
A possible factor in the Appeals ruling could also come from rideshare companies upcoming decisions around
COVID-19 coronavirus matters, such as sick leave and work times. Should Uber or Postmates limit work in some way, it could bring into question whether or not sick leave is factored into being an employee or being an independent contractor.