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The Latest Californian Legislation Affecting Employers and Gig Workers

August 12, 2020

Fair warning: skip to the last paragraph if your organization does not employ workers in California.

The definition of an employee in California changed in early 2018, when the California Supreme Court decided the Dynamex Operations West (Dynamex) case. Assembly Bill 5 (AB5) is the formalized adoption and expansion of the Dynamex ruling. It was signed into law September 2019 and became effective January 1st, 2020. AB5 was immediately challenged by Uber and Lyft, who treat drivers as independent contractors, not employees.

On August 10th, the California Supreme Court issued a preliminary injunction confirming that Uber and Lyft must comply with AB5.

Uber and Lyft argue that the workers are independent and do not contribute to their core product, which they market as a disruptive technology platform. That doesn't align with the industry provisions that govern their business as providers of transportation: the judge was not convinced by marketing materials. Uber and Lyft are using an older test to classify their workers, based on the Borello and Sons (Borello) court decision from 1989. The Borello test relies on several factors used to determine the degree of control an employer exercises over the worker. Using Borello, one can argue the drivers use their own equipment and exercise a high degree of control over their work. On the other side of this argument, some drivers argue they don't earn minimum wage or have access to protections and benefits. In other words, flexibility doesn't equate to independence.

AB5 holds employers to a new standard, and presupposes workers are employees in the absence of documentation proving otherwise.

For most employers who have adopted the new worker classification standards, this will not have a large impact. However, for those who've been holding out hope, it's time to weigh the cost of compliance against the risk and cost of a California Employment Development Department (EDD) audit. The EDD audits are time consuming and expensive. They can be triggered by several factors; often it's an unemployment claim, or a 1099-MISC document that lists a name and social security number rather than a Federal Employer Identification number.

AB5 clarified worker classification methodology and arrived at just three tests, all of which must be satisfied. For a worker to be considered a contractor, they must

  1. Be free from the control and direction of the hiring entity (the Borello test in brief)
  2. Do work that is outside the usual course of the hiring entity's work, and
  3. Be established in a trade or business similar to the work being performed/provided.

What's next?

No doubt Uber and Lyft have more to say on this topic;  they have ten days to appeal. And in November, several companies who rely on gig-workers, including DoorDash, have funded a measure on the ballot to keep workers classified as independent contractors. With unemployment claims skyrocketing, all states are eager to tighten up worker classification rules. Though some still resort to the federal or Borello test, many are considering AB5-like legislation. Organizations are advised to stay vigilant and keep abreast of changes. We will issue a state by state summary of recent court decisions in the coming days.

For more information, please refer to our previous blogs on this subject and free to contact our experts if you have any questions.

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