5 ms·

AB5 has been a total disaster. The number of special cased carve-outs is ridiculous - it's not a normal law. Obviously AB5 was hacked together by some special

AB5 has been a total disaster. The number of special cased carve-outs is ridiculous - it's not a normal law. Obviously AB5 was hacked together by some special interests (unions maybe - what is history?). It's totally unworkable. The carveouts that keep coming are the sign of this - how many are there now, anyone have the list? And yes, I'm a maxed out dem donor. If AB5 is the way workers rights are going to be advanced we are hosed. I can think of 5 much easier, fairer, high impact approaches.

azinman2 6y ago
What would they be?
akiselev 6y ago
> The number of special cased carve-outs is ridiculous - it's not a normal law. I looked up AB5 [1] and read about the "carve outs" last time the topic came up, among several other. It's far shorter than other nontrivial bills and I couldn't find a single one that didn't specifically mention a superseding precedent or specialized State or Federal law that had supremacy regardless. For example, the primary exceptions are driven by the Borello test from Borello & Sons, Inc. v. Dept. of Industrial Relations which is a California supreme court decision [2], the interaction between California and Federal fishing regulations [3], and a vast array of past state and federal regulations written for licensed professionals like lawyers, doctors, and even commercial truck drivers [4]. [1] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm... [2] (c) (1) Subdivision (a) and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that all of the following factors are satisfied: ... [3] (ii) “Commercial fisherman” means a person who has a valid, unrevoked commercial fishing license issued pursuant to Article 3 (commencing with Section 7850) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code. ... (C) On or before March 1, 2021, and each March 1 thereafter, the Employment Development Department shall issue an annual report to the Legislature on the use of unemployment insurance in the commercial fishing industry. This report shall include, but not be limited to, reporting the number of commercial fishermen who apply for unemployment insurance benefits, the number of commercial fishermen who have their claims disputed, the number of commercial fishermen who have their claims denied, and the number of commercial fishermen who receive unemployment insurance benefits. The report required by this subparagraph shall be submitted in compliance with Section 9795 of the Government Code. [4] (8) (A) Paragraph (2) shall not apply to a subcontractor providing construction trucking services for which a contractor’s license is not required by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, provided that all of the following criteria are satisfied ...
- fairity 6y ago
  What's your point? Yes, these carveouts all fall back to a version of the law that is much more lenient on the definition of an independent contractor. That should be obvious...if there wasn't any pre-existing law that defined contractor, businesses would make every employee a contractor.
  - akiselev 6y ago
    AB5 can't override past precedent and Federal supremacy. That they didn't try is a sign of the bare minimum of legislative competency that I would expect from a legislature.
    - fairity 6y ago
      Source? Everything I've read suggests that past precedent is overriden by AB5 if not for the carveouts. Additionally, take a look at AB2257 which was an update to AB5 passed last month that adds a ton more carveouts. Example source: https://www.wagehourblog.com/2020/03/articles/california-wage-hour-law/ab-5-dynamex-and-borello-what-standard-governs-independent-contractor-status-in-california/ https://www.wagehourblog.com/2020/03/articles/california-wag...
      - akiselev 6y ago
        I couldn't get past the first few sections oF that soUrce, which incluDes nuggets like Or maybe AB 5 and Dynamex. Or maybe AB 5 and Dynamex and Borello. Or maybe just Dynamex. The very recent Dynamex and the relatively old Borello decisions are California Supreme Court Cases that take precedence over California legislation baring a California Constitutional Amendment or sweeping labor reform. AB5 gets rid of ambiguities, not create them. That's why the intro to AB5 reads: SECTION 1. The Legislature finds and declares all of the following: (a) On April 30, 2018, the California Supreme Court issued a unanimous decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex). AB5 is meant to bring state regulations in line with the courts, which just established new and important precedent for California labor law in Dynamex that created new ambiguities in a critical set of laws. That decision doesn't supersede Borello, which is a well litigated topic that any lawyer specializing in California labor law understands. Thank you for the reference to AB2257 [0], I didn't know about it. A cursory scan implies that the legislature is responding to real situations like Vox Media's laying off of hundreds of journalists [1], more Borello (!) [2], some exceptions that reasonable people can argue is common sense or corruption [3], and a bunch of other boring stuff [4]. I don't have the time to really dig into the new bill but if you can name any specific section in either bill that you find particular egregious, I'm interested to know. [0] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB2257 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm... [1] This bill would delete the existing professional services exemptions for services provided by still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists. The bill would, instead, establish an exemption for services provided by a still photographer, photojournalist, videographer, or photo editor, as defined, who works under a written contract that specifies certain terms, subject to prescribed restrictions. The bill would establish an exemption for services provided to a digital content aggregator, as defined, by a still photographer, photojournalist, videographer, or photo editor. The bill would establish an exemption for services provided by a fine artist, freelance writer, translator, editor, content contributor, advisor, narrator, cartographer, producer, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies certain terms, subject to prescribed restrictions. [2] 2776. Section 2775 and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions: (a) If an individual acting as a sole proprietor, or a business entity formed as a partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business or to a public agency or quasi-public corporation (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: ... [3] (2) (A) “Referral agency” is a business that provides clients with referrals for service providers to provide services under a contract, with the exception of services in subparagraph (C). (B) Under this paragraph, referrals for services shall include, but are not limited to, graphic design, web design, photography, tutoring, consulting, youth sports coaching, caddying, wedding or event planning, services provided by wedding and event vendors, minor home repair, moving, errands, furniture assembly, animal services, dog walking, dog grooming, picture hanging, pool cleaning, yard cleanup, and interpreting services. (C) Under this paragraph, referrals for services do not include services provided in an industry designated by the Division of Occupational Safety and Health or the Department of Industrial Relations as a high hazard industry pursuant to subparagraph (A) of paragraph (3) of subdivision (e) of Section 6401.7 of the Labor Code or referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair. [4] (7) “Interpreting services” means: (A) Services provided by a certified or registered interpreter in a language with an available certification or registration through the Judicial Council of California, State Personnel Board, or any other agency or department in the State of California, or through a testing organization, agency, or educational institution approved or recognized by the state, or through the Registry of Interpreters for the Deaf, Certification Commission for Healthcare Interpreters, National Board of Certification for Medical Interpreters, International Association of Conference Interpreters, United States Department of State, or the Administrative Office of the United States Courts. (B) Services provided by an interpreter in a language without an available certification through the entities listed in subparagraph (A).
nickpp 6y ago
AB5 was written by the Teamsters - an multinational Syndicate who couldn’t include and collect Uber drivers membership fees unless they were actual employees. Its main architect, Lorena Gonzales, is a Teamsters woman through and through, by her own admission. https://en.wikipedia.org/wiki/International_Brotherhood_of_Teamsters?wprov=sfti1 https://en.wikipedia.org/wiki/International_Brotherhood_of_T...
- CameronNemo 6y ago
  This is so off base. It sounds like a regurgitation of a Red State post. If anyone wants to read about Lorena Gonzalez-Fletcher, just check her Wikipedia page: https://en.wikipedia.org/wiki/Lorena_Gonzalez#Early_life,_education,_and_personal_life https://en.wikipedia.org/wiki/Lorena_Gonzalez#Early_life,_ed... She was involved with the AFL-CIO, but I see no mention of involvement with the Teamsters union.
  - nickpp 6y ago
    "Dude. I am a Teamster. I ran for office as an organizer and labor leader. I believe in unions to my core. Stand in solidarity with workers every single day. Bought & paid for? No... I am the union." https://twitter.com/LorenaSGonzalez/status/1134087876390428672?s=20 https://twitter.com/LorenaSGonzalez/status/11340878763904286...
    - djur 6y ago
      Doesn't look like an "admission" to me. Looks like pride.
    - CameronNemo 6y ago
      Alright fair enough, Lorena is a Teamster. But why would you assume that the union wrote it when she is more than capable of writing laws herself?
      - some_account99 6y ago
        You realise that parent actually stated she was the architect and you disagreed about her being a teamster?
jl2718 6y ago
Reminder that the Democratic party, like all others, is an IRS-registered business, and like all others, has only one goal: to make money. It’s not a sacred oath to save the world. It’s a taco stand next to a hot dog vendor. They make money. Maybe they have a big customer. It’s probably not you. You’re a good customer but you’ll never eat a hot dog, so they don’t have to change their menu for you.
- anoraca 6y ago
  That's a shockingly cynical view. Not everyone exists purely to make money.
  - nickpp 6y ago
    Politicians do though.

azinman2 6y ago

What would they be?

akiselev 6y ago

> The number of special cased carve-outs is ridiculous - it's not a normal law. I looked up AB5 [1] and read about the "carve outs" last time the topic came up, among several other. It's far shorter than other nontrivial bills and I couldn't find a single one that didn't specifically mention a superseding precedent or specialized State or Federal law that had supremacy regardless. For example, the primary exceptions are driven by the Borello test from Borello & Sons, Inc. v. Dept. of Industrial Relations which is a California supreme court decision [2], the interaction between California and Federal fishing regulations [3], and a vast array of past state and federal regulations written for licensed professionals like lawyers, doctors, and even commercial truck drivers [4]. [1] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm... [2] (c) (1) Subdivision (a) and the holding in Dynamex do not apply to a contract for “professional services” as defined below, and instead the determination of whether the individual is an employee or independent contractor shall be governed by Borello if the hiring entity demonstrates that all of the following factors are satisfied: ... [3] (ii) “Commercial fisherman” means a person who has a valid, unrevoked commercial fishing license issued pursuant to Article 3 (commencing with Section 7850) of Chapter 1 of Part 3 of Division 6 of the Fish and Game Code. ... (C) On or before March 1, 2021, and each March 1 thereafter, the Employment Development Department shall issue an annual report to the Legislature on the use of unemployment insurance in the commercial fishing industry. This report shall include, but not be limited to, reporting the number of commercial fishermen who apply for unemployment insurance benefits, the number of commercial fishermen who have their claims disputed, the number of commercial fishermen who have their claims denied, and the number of commercial fishermen who receive unemployment insurance benefits. The report required by this subparagraph shall be submitted in compliance with Section 9795 of the Government Code. [4] (8) (A) Paragraph (2) shall not apply to a subcontractor providing construction trucking services for which a contractor’s license is not required by Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code, provided that all of the following criteria are satisfied ...

fairity 6y ago
What's your point? Yes, these carveouts all fall back to a version of the law that is much more lenient on the definition of an independent contractor. That should be obvious...if there wasn't any pre-existing law that defined contractor, businesses would make every employee a contractor.
- akiselev 6y ago
  AB5 can't override past precedent and Federal supremacy. That they didn't try is a sign of the bare minimum of legislative competency that I would expect from a legislature.
  - fairity 6y ago
    Source? Everything I've read suggests that past precedent is overriden by AB5 if not for the carveouts. Additionally, take a look at AB2257 which was an update to AB5 passed last month that adds a ton more carveouts. Example source: https://www.wagehourblog.com/2020/03/articles/california-wage-hour-law/ab-5-dynamex-and-borello-what-standard-governs-independent-contractor-status-in-california/ https://www.wagehourblog.com/2020/03/articles/california-wag...
    - akiselev 6y ago
      I couldn't get past the first few sections oF that soUrce, which incluDes nuggets like Or maybe AB 5 and Dynamex. Or maybe AB 5 and Dynamex and Borello. Or maybe just Dynamex. The very recent Dynamex and the relatively old Borello decisions are California Supreme Court Cases that take precedence over California legislation baring a California Constitutional Amendment or sweeping labor reform. AB5 gets rid of ambiguities, not create them. That's why the intro to AB5 reads: SECTION 1. The Legislature finds and declares all of the following: (a) On April 30, 2018, the California Supreme Court issued a unanimous decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex). AB5 is meant to bring state regulations in line with the courts, which just established new and important precedent for California labor law in Dynamex that created new ambiguities in a critical set of laws. That decision doesn't supersede Borello, which is a well litigated topic that any lawyer specializing in California labor law understands. Thank you for the reference to AB2257 [0], I didn't know about it. A cursory scan implies that the legislature is responding to real situations like Vox Media's laying off of hundreds of journalists [1], more Borello (!) [2], some exceptions that reasonable people can argue is common sense or corruption [3], and a bunch of other boring stuff [4]. I don't have the time to really dig into the new bill but if you can name any specific section in either bill that you find particular egregious, I'm interested to know. [0] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB2257 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtm... [1] This bill would delete the existing professional services exemptions for services provided by still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists. The bill would, instead, establish an exemption for services provided by a still photographer, photojournalist, videographer, or photo editor, as defined, who works under a written contract that specifies certain terms, subject to prescribed restrictions. The bill would establish an exemption for services provided to a digital content aggregator, as defined, by a still photographer, photojournalist, videographer, or photo editor. The bill would establish an exemption for services provided by a fine artist, freelance writer, translator, editor, content contributor, advisor, narrator, cartographer, producer, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies certain terms, subject to prescribed restrictions. [2] 2776. Section 2775 and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions: (a) If an individual acting as a sole proprietor, or a business entity formed as a partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business or to a public agency or quasi-public corporation (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: ... [3] (2) (A) “Referral agency” is a business that provides clients with referrals for service providers to provide services under a contract, with the exception of services in subparagraph (C). (B) Under this paragraph, referrals for services shall include, but are not limited to, graphic design, web design, photography, tutoring, consulting, youth sports coaching, caddying, wedding or event planning, services provided by wedding and event vendors, minor home repair, moving, errands, furniture assembly, animal services, dog walking, dog grooming, picture hanging, pool cleaning, yard cleanup, and interpreting services. (C) Under this paragraph, referrals for services do not include services provided in an industry designated by the Division of Occupational Safety and Health or the Department of Industrial Relations as a high hazard industry pursuant to subparagraph (A) of paragraph (3) of subdivision (e) of Section 6401.7 of the Labor Code or referrals for businesses that provide janitorial, delivery, courier, transportation, trucking, agricultural labor, retail, logging, in-home care, or construction services other than minor home repair. [4] (7) “Interpreting services” means: (A) Services provided by a certified or registered interpreter in a language with an available certification or registration through the Judicial Council of California, State Personnel Board, or any other agency or department in the State of California, or through a testing organization, agency, or educational institution approved or recognized by the state, or through the Registry of Interpreters for the Deaf, Certification Commission for Healthcare Interpreters, National Board of Certification for Medical Interpreters, International Association of Conference Interpreters, United States Department of State, or the Administrative Office of the United States Courts. (B) Services provided by an interpreter in a language without an available certification through the entities listed in subparagraph (A).

nickpp 6y ago

AB5 was written by the Teamsters - an multinational Syndicate who couldn’t include and collect Uber drivers membership fees unless they were actual employees. Its main architect, Lorena Gonzales, is a Teamsters woman through and through, by her own admission. https://en.wikipedia.org/wiki/International_Brotherhood_of_Teamsters?wprov=sfti1 https://en.wikipedia.org/wiki/International_Brotherhood_of_T...

CameronNemo 6y ago
This is so off base. It sounds like a regurgitation of a Red State post. If anyone wants to read about Lorena Gonzalez-Fletcher, just check her Wikipedia page: https://en.wikipedia.org/wiki/Lorena_Gonzalez#Early_life,_education,_and_personal_life https://en.wikipedia.org/wiki/Lorena_Gonzalez#Early_life,_ed... She was involved with the AFL-CIO, but I see no mention of involvement with the Teamsters union.
- nickpp 6y ago
  "Dude. I am a Teamster. I ran for office as an organizer and labor leader. I believe in unions to my core. Stand in solidarity with workers every single day. Bought & paid for? No... I am the union." https://twitter.com/LorenaSGonzalez/status/1134087876390428672?s=20 https://twitter.com/LorenaSGonzalez/status/11340878763904286...
  - djur 6y ago
    Doesn't look like an "admission" to me. Looks like pride.
  - CameronNemo 6y ago
    Alright fair enough, Lorena is a Teamster. But why would you assume that the union wrote it when she is more than capable of writing laws herself?
    - some_account99 6y ago
      You realise that parent actually stated she was the architect and you disagreed about her being a teamster?

jl2718 6y ago

Reminder that the Democratic party, like all others, is an IRS-registered business, and like all others, has only one goal: to make money. It’s not a sacred oath to save the world. It’s a taco stand next to a hot dog vendor. They make money. Maybe they have a big customer. It’s probably not you. You’re a good customer but you’ll never eat a hot dog, so they don’t have to change their menu for you.

anoraca 6y ago
That's a shockingly cynical view. Not everyone exists purely to make money.
- nickpp 6y ago
  Politicians do though.