Independent contracting allows workers freedom and control of how and when they work. Many said under AB 5, their liberty and freedom has been taken away.
Thursday morning, the the California Assembly rejected a motion by Assemblyman Kevin Kiley (R-Rocklin) to suspend AB 5 while corrective legislation is under consideration. Kiley’s Assembly Bill 1928 is an urgency measure to repeal AB 5 and would return the legal standard for independent contracting to what it was for decades before AB 5 and the Dynamex decision. Kiley proposed the Legislature suspend those recent changes pending further legislative consideration.
The Assembly rejected Kiley’s motion largely on procedural games. The vote taken was not to repeal the AB5 vote; it was a motion to temporarily suspend the Constitution to allow the urgency of AB 1928 to move forward.
Shortly after the vote, AB 5 author Assemblywoman Lorena Gonzales sent out this Tweet:
“When we passed #AB5 last year, we acknowledged our work to provide clarity following the #Dynamex decision wasn’t done. After more than a year of meetings, fact-findings and discussions with freelance writers and journalists, we’re making changes…”
Many replied on Twitter similarly:
“Why would you draft and pass a law in such a hurry that is still a work in progress as you’ve said yourself? That makes absolutely no sense!”
“Today’s vote defied basic human decency,” said Assemblyman Kiley following the vote. “The Assembly consciously chose to keep enforcing a law that everyone, including the author, acknowledges has major problems and is destroying people’s lives. I’ve never been more ashamed of this legislative body.”
Kiley was not alone in his disappointment. Immediately following the vote, Kiley and a group of independent contractors opposed to AB 5, many who had traveled from Southern California, met and discussed what happened, covered some of the individual issues, and considered several solutions. California Globe was in the Assembly, and met after with many of the freelancers and independent contractors, and heard more stories about the impact AB 5 has had on their work.
These independent contractors have done their homework and understand AB 5 better than some lawmakers who voted for it.
Attending the meeting and rally at the Capitol were court reporters, massage therapists, professional musicians, sign language interpreters and foreign language interpreters, a retired fire fighter who has a business which provides medics for youth sporting events, medical professionals, professional actors, creative artists and other independent entrepreneurs.
Independent contracting allows workers freedom and control of how and when they work. Many said under AB 5. their liberty and freedom has been taken away.
By a show of hands, they said none of them were opposed to labor unions, but they did oppose being forced into one as AB 5 would do.
One actor said the real “gig” economy is in Los Angeles, home of the entertainment industry, where they all have many “gigs.” Musicians, actors and creative artists cobble together lots of gigs and can make a good living at it. AB 5 has already caused many of those businesses which hire them to notify them that the 1099 independent contractor arrangement cannot continue.
As for musicians and actors getting an exemption, another musician said that may be fine, but that doesn’t help with all of the other non-entertainment industry gigs he does. “Being a musician can’t be a full time job. If you carve out music, all of the other jobs I do are still in jeopardy,” he said.
The group of independent contractors also noted at the meeting following the vote that this is the ultimate non-partisan issue, or should be. Several commented that Assemblywoman Gonzalez is trying to keep the independent contractors divided. “I’ve been a Democrat all my life,” said one man. “But after today’s vote, AB 5 is making me think about moving to the Republicans.”
Another Tweet reply to Gonzalez expressed what many in the meeting also expressed: “Why wouldn’t you work out the kinks before thrusting your law on the public?! You passed a flawed law. It’s been only 2 months since implemented and already over 30 bills to correct its damages. Many of these problems were pointed out to you long before the bill was passed.”
One reason to stay on the good side of artists:
Shortly after the Assembly vote, Gonzalez issued a press statement about her amendments to AB 5:
When AB 5 passed last year, Assemblywoman Gonzalez acknowledged that the Legislature’s work was not done. She introduced Assembly Bill 1850 in January to continue working on the issues affecting a variety of industries following the unanimous 2018 California Supreme Court’s Dynamex decision that established a three-part ABC test for determining employment status. In the first substantive round of amendments to AB 1850, Assemblywoman Gonzalez is making a variety of changes to how AB 5 applies to freelancer writers, photographers and editors.
The amendments remove the cap on the number of submissions that a freelancer writer, photographer or editor can provide a single hiring entity before they must classify the individual as an employee. To strike a balance and protect employment opportunities in these professions, the amendments specify that a contractor cannot replace an employee position.
When these individuals provide services under a contract, the contract must specify the rate of their pay, a defined time by which they must receive their payment, and the individual’s intellectual property rights to the work. The amendments also specify that freelancers cannot be restricted from working for more than one hiring entity and cannot primarily perform their work at the hiring entity’s business location.
AB 5 already contains requirements that hiring entities of freelance writers, photographers, and editors must verify in order for Dynamex and the ABC test to not apply, including that:
- The individual is providing services through a sole proprietorship or other business entity.
- The individual maintains a business location that is separate from the hiring entity, which may include the individual’s residence.
- The individual has a business license, if their work is performed after July 1, 2020.
- The individual has the ability to set or negotiate their own rates for the services performed.
Many freelancers and independent contractors have asked why journalists will be granted an exemption, while they are not.
The easy answer is that the continuing political career of Assemblywoman Lorena Gonzalez cannot withstand an adversarial media. An exemption for journalists and photographers also removes their legal standing in their lawsuit.
In January, U.S. District Judge Philip Gutierrez denied two freelancers’ temporary restraining order request challenging Assembly Bill 5, despite their claims that the new law will prevent them from making a living at freelancing. In a highly questionable decision, the judge said they waited too long after the bill was signed into law in 2018 to make the emergency request for exemption from the law.
AB 5 limits freelance writers and photographers to 35 submissions annually per media outlet, and will serve to significantly limit Californians’ ability to work as independent contractors and freelancers. The lawsuit, American Society of Journalists and Authors v. Becerra, will be heard in March.
AB 5 broadly codified the definition of an employee that the California Supreme Court established last year in a case involving two delivery drivers who sued the Dynamex Corporation for classifying them as independent contractors instead of employees.
It was revealed during Senate debate in September that the AFL-CIO wrote AB 5.