4 ms·

> 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

> 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).
dang 6y ago
Please edit out swipes like "Have you actually read" and name-calling like "This FUD is nonsense". Those things destroy conversation and break the site guidelines, and your comment would be just fine without them. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
hornd 6y ago
AB2257 added significantly more exemptions.
donor20 6y ago
A quick list (likely much more / more complicated than this) of carveouts I could find: accountants architects cartographers copy editors dentists direct sales salespersons engineers fine artists fishermen working on an American vessel freelance editors freelance writers insurance agents insurance inspectors investment advisers landscape architects lawyers manufactured housing salespersons musicians involved in sound recordings or musical compositions musicians with single-engagement live performances newspaper cartoonists photojournalists podiatrists private investigators producers professional foresters psychologists real estate appraisers securities broker-dealers still photographers surgeons translators veterinarians youth sports coaches Industries with exemptions: appraising auditing competition judging copy editing and illustrations digital content and feedback aggregation home inspections insurance underwriting inspections international and cultural exchange services landscape architecture manufactured housing sales master class performance performing arts recording arts and music registered professional forestry risk management and loss control translation of documents You make claims that this list is shorter than other non-trivial bills. I've worked in this space trying to get things right - this is BY FAR the hardest to implement law out there. A seller wants to sell their home, as part of that they pay out of escrow for an appraiser (normally handled as a contractor) to appraise the house. Under AB5 they had to HIRE that person as an employee in most cases - they are not even setup to run payroll! An org wants to sponsor a "fellowship" for $1,000 or $2,000 to a student and have them attend an event / do a presentation. Can't do that under AB5, they can't be 1099'ed anymore, they are below exempt comp threshold, even if you pay them as non-exempt this student has to track their hours "working" for employer, get paid overtime etc. Reality - student doesn't want to track their hours, employer doesn't care and doesn't want to have to onboard and ramp up someone for a feel good thing like a $2,000 fellowship and program is cancelled. You hire someone to write an article. Do you want them tracking their hours, do they? Will you hire them if you might have to pay for hours and overtime and missed meal breaks while someone is at home writing this article? The list goes on.

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).

dang 6y ago

Please edit out swipes like "Have you actually read" and name-calling like "This FUD is nonsense". Those things destroy conversation and break the site guidelines, and your comment would be just fine without them. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

hornd 6y ago

AB2257 added significantly more exemptions.

donor20 6y ago

A quick list (likely much more / more complicated than this) of carveouts I could find: accountants architects cartographers copy editors dentists direct sales salespersons engineers fine artists fishermen working on an American vessel freelance editors freelance writers insurance agents insurance inspectors investment advisers landscape architects lawyers manufactured housing salespersons musicians involved in sound recordings or musical compositions musicians with single-engagement live performances newspaper cartoonists photojournalists podiatrists private investigators producers professional foresters psychologists real estate appraisers securities broker-dealers still photographers surgeons translators veterinarians youth sports coaches Industries with exemptions: appraising auditing competition judging copy editing and illustrations digital content and feedback aggregation home inspections insurance underwriting inspections international and cultural exchange services landscape architecture manufactured housing sales master class performance performing arts recording arts and music registered professional forestry risk management and loss control translation of documents You make claims that this list is shorter than other non-trivial bills. I've worked in this space trying to get things right - this is BY FAR the hardest to implement law out there. A seller wants to sell their home, as part of that they pay out of escrow for an appraiser (normally handled as a contractor) to appraise the house. Under AB5 they had to HIRE that person as an employee in most cases - they are not even setup to run payroll! An org wants to sponsor a "fellowship" for $1,000 or $2,000 to a student and have them attend an event / do a presentation. Can't do that under AB5, they can't be 1099'ed anymore, they are below exempt comp threshold, even if you pay them as non-exempt this student has to track their hours "working" for employer, get paid overtime etc. Reality - student doesn't want to track their hours, employer doesn't care and doesn't want to have to onboard and ramp up someone for a feel good thing like a $2,000 fellowship and program is cancelled. You hire someone to write an article. Do you want them tracking their hours, do they? Will you hire them if you might have to pay for hours and overtime and missed meal breaks while someone is at home writing this article? The list goes on.