5 ms·

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 sh

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).
- gnopgnip 6y ago
  The legislature could modify existing laws and override precedent set by the courts, to the extent it is not unconstitutional. And the interpretation of what is a contractor or employee has largely not been a constitutional matter, it is about interpreting the vague, silent and conflicting labor laws. The Federal labor laws almost always explicitly allow states to set stricter limits, they do not preempt state laws via supremacy
  - akiselev 6y ago
    AB5 is the stricter limit CA is setting, no? The legislature does have plenary power to "enforce a complete system of workers’ compensation" but no one's going to undertake the challenge of massive labor reform challenging Borello and the ABC test for Ubers' sake, especially when it's so contentious (for what it's worth, I'm slightly biased because of the fear it'll open the door to other labor law poison pills). AB5 brings the existing framework into spec with Borello/Dynamex and clarifies open questions. That's why Uber, Lyft, et al have thrown almost $200 million behind the prop 22 marketing campaign. Even if the legislature overturns AB5, the core reasons behind the court's decision remain for future lawsuits to hammer home. AFAICT Uber's only hope is the CA Supreme Court not doing to Prop 22 what it did to Prop 8 or Federal reform. They're not going to get it from the state legislature.

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).
gnopgnip 6y ago
The legislature could modify existing laws and override precedent set by the courts, to the extent it is not unconstitutional. And the interpretation of what is a contractor or employee has largely not been a constitutional matter, it is about interpreting the vague, silent and conflicting labor laws. The Federal labor laws almost always explicitly allow states to set stricter limits, they do not preempt state laws via supremacy
- akiselev 6y ago
  AB5 is the stricter limit CA is setting, no? The legislature does have plenary power to "enforce a complete system of workers’ compensation" but no one's going to undertake the challenge of massive labor reform challenging Borello and the ABC test for Ubers' sake, especially when it's so contentious (for what it's worth, I'm slightly biased because of the fear it'll open the door to other labor law poison pills). AB5 brings the existing framework into spec with Borello/Dynamex and clarifies open questions. That's why Uber, Lyft, et al have thrown almost $200 million behind the prop 22 marketing campaign. Even if the legislature overturns AB5, the core reasons behind the court's decision remain for future lawsuits to hammer home. AFAICT Uber's only hope is the CA Supreme Court not doing to Prop 22 what it did to Prop 8 or Federal reform. They're not going to get it from the state legislature.