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Let the Challenges Begin to California’s New Independent Contractor Law

On January 1, 2020, California’s AB 5 went into effect. It codified new legal standards for determining whether a worker is an employee or an independent contractor. The statute greatly expands the class of workers that will be considered employees, including those workers in the “gig” economy. Certain categories of workers were expressly exempted.
Reaction to the new law has been strong. Companies such as Uber and Postmates are working to pass a ballot initiative that would remove ride-share and delivery drivers from being classified as employees under AB 5. The California Trucking Association has filed a lawsuit challenging the statute. It has argued that the new statute is preempted by the Federal Aviation Administration Authorization Act of 1994 and seeks an injunction precluding enforcement.
The latest challenge has come from the American Society of Journalists and Authors and the National Press Photographers Association. These writers and photographers argue that the new law unconstitutionally restricts free speech and the media. This argument arises out of AB 5’s language that limits how many submissions a writer may submit to a single publication. Once a writer has provided 35 submissions to a publication, the writer must be classified as an employee. Because similar restrictions are not placed on graphic designers, fine artists and others, the writers contend it is unconstitutional. There is additional harm alleged by these groups because the increased costs of hiring them will lead to fewer job opportunities, may strip freelancers of ownership of their copyrighted work, and will limit their flexibility in securing work. The journalists and photographers also assert the exemption of certain categories of workers while limiting their groups is an irrational and arbitrary distinction.