Because California’s AB 5 by Assemblywoman Lorena Gonzalez hasn’t done enough damage already to independent contractors and freelance workers in hundreds of different industries, Congressional Democrats and Speaker Nancy Pelosi are championing their own national version: The Protecting the Right to Organize Act or PROAct, on behalf of the AFL-CIO.
Following the State of the Union, Pelosi announced Wednesday on Twitter: “The most important table in America is the kitchen table. Tomorrow, we will pass the #PROAct to protect Americans’ rights to join a union and raise the purchasing power of families across America. #ForThePeople.“
Assembly Bill 5 by former labor leader Assemblywoman Lorena Gonzalez (D-San Diego), has already significantly limited Californians’ ability to work as independent contractors and freelancers. It was revealed during Senate debate in September that the AFL-CIO wrote AB 5.
Assemblywoman Gonzalez said in December, “These were never good jobs,” referring to freelance journalists, as justification for AB 5.
California freelance journalists are losing jobs en masse because AB 5 also randomly limits freelance writers and photographers to 35 submissions annually per media outlet. Members of the entertainment industry are seeing jobs cancelled in droves. And even ADA protected industries such as court reporters, captioners, and sign language interpreters, a majority of whom prefer the independence and flexibility of deciding when and where to work, are seeing their ability to work as independent contractors and freelancers in jeopardy, as California Globe reported.
The law, signed by Gov. Gavin Newsom, broadly codified the newest definition of an employee, established in 2018 in the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, which dealt a blow to independent contractors. The Court ruled that the Dynamex delivery drivers were employees, rejecting its own prior test for determining whether workers should be classified as either employees or independent contractors,” Forbes reported.
According to many legal analysts, what the Court did was legislate from the bench by adopting a new rule for the narrow purpose of interpreting California’s Industrial Welfare Commission’s wage orders.
New York Democrats are trying to adopt their own version as well.
As California Globe reported recently, there are 56.7 million freelance workers currently enjoying life as independent contractors in America.
Assemblywoman Gonzalez and California’s Democrat lawmakers claim to care about workers, but only if they agree to unionize. They claim that the rideshare and app-based gig workers are being exploited by Uber, Lyft, Doordash and other app based businesses.
And despite AB 5 going through the legislative committee process, and hundreds of gig workers, business owners and independent contractors warning lawmakers that the bill would destroy many more jobs than just the gig economy app based businesses, they passed the law anyway.
Gonzalez was warned AB 5 could destroy California’s entire Gig economy if passed and signed into law.
“In fact, 66 percent of Uber and Lyft drivers would prefer to remain independent contractors,” the Federalist reported. “The truth that lawmakers don’t want to admit is that gig workers willingly trade certain benefits for what they see as better benefits, and that the nature of work has moved away from the union model, and it’s not going back. Freelancers are de facto small business owners who run themselves as a company.”
Exemptions From AB 5 and Possible Fixes
A new bill has been proposed to exempt freelance journalists from the independent contractor redefining AB 5 law in the California Senate. Senate Bill 868, authored by Senator Patricia Bates (R-Laguna Niguel), would also end the post AB 5 rule of limiting freelance journalists to 35 articles a year per publication.
A federal lawsuit by two drivers and Uber and Postmates seeks declaratory, injunctive, and other relief to determine that AB 5 is unconstitutional. Their lawsuit claims AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.
The PRO Act, H.R. 2474, would preempt state labor laws, overrule three Supreme Court decisions, and transform the National Labor Relations Board (NLRB) into a punitive one. The PRO Act would:
- Require workers to pay dues to a union
- Change the definition of joint employment in order to ease union organizing;
- Amend the definition of employee to increase the pool of employees eligible for unionization;
- Impose government-mandated arbitration to dictate employment terms in first negotiations
- Promote card-check organizing, a process that forces union representation on workers without a secret-ballot election.
With the many state and federal legal challenges to AB 5, for Pelosi and House Democrats to carry the water for the AFL-CIO on a national level, willing to kill 56 million freelance and independent contractor jobs, does not bode well in an election year.
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