California’s AB5 Gig Work Bill

Episode Notes

Transcript

Lawyer 2 Lawyer: – Law News and Legal Topics

California’s AB5 Gig Work Bill

09/23/2019

 

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Diane Mulcahy: The test is not well-defined, it’s not clear, it’s not objective and I think it’s going to be difficult to implement and enforce this law.

 

William B. Gould: The fact of the matter is that we have become a two job and three job economy, sometimes because of the workers’ wishes, but very frequently because workers have to work two or three jobs to keep bread on the table and to foster some kind of environment of opportunities for their children.

 

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

 

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1. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from a sunny Southern California. I write a blog named May it Please the Court and have two books out called ‘The Sled’ and ‘How to Get Sued’.

 

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For our show today this month California state senators passed Assembly Bill 5, better known as AB5, California’s Gig Economy Worker Bill. AB5 requires workers previously classified as independent contractors to be classified as employees, affording them greater labor protections, minimum wage laws and sick leave.

 

AB5 now heads to Governor Gavin Newsom for signature, which is expected.

 

Well, according to the Bill’s author Assemblywoman Lorena Gonzalez, a Democrat from San Diego, AB5’s aim is to provide a steady income, health benefits and other protections for contract employees like Lyft or Uber drivers.

 

Supporters of the Bill praised the benefits of AB5 and opponents like Uber and Lyft argue that AB5 would impact the flexibility and freedom of workers. States like Massachusetts, Virginia and New Jersey already have laws similar to AB5 in place.

 

Today on Lawyer 2 Lawyer we are going to discuss California’s AB5 Gig Work Bill, the gig economy and the impact on the workplace. And to do that we have got a great show for you today.

 

Our first guest is Diane Mulcahy. She is an Adjunct Lecturer at the Entrepreneurship Division at Babson College. She created and teaches the MBA class Entrepreneurship and the Gig Economy, which was named by Forbes.com as one of the Top 10 Most Innovative Business School Classes in the country.

 

Diane is the author of ‘The Gig Economy’ from HarperCollins, a best-selling book on Amazon that has been translated into five languages and featured widely in national media.

 

And welcome to the show Diane.

 

Diane Mulcahy: Thanks for having me.

 

1. Craig Williams: And our next guest is William B. Gould, the IV. He is the Charles A. Beardsley Professor of Law Emeritus at Stanford Law School. He is a prolific scholar of labor and discrimination law. Professor Gould has been an influential voice in worker management relations for more than 50 years and he served as Chairman of the National Labor Relations Board and subsequently Chairman of the California Agricultural Labor Relations Board.

 

Welcome to the show William.

 

William B. Gould: Thank you. Good to be with you.

 

1. Craig Williams: And as we talked about in the very beginning today, we are going to be talking about California Assembly Bill 5, which is also — similar laws exist in other states, but William, I think if we can start with you, just give us a general context of what AB5 is trying to do and the difference between independent contractors and employees.

 

William B. Gould: Yes. Well, of course traditionally here in California, in most jurisdictions, independent contractors are excluded from the coverage of basic labor laws and the AB5 really results from a growing inequality in our society between rich and poor, a greater use of the independent contractor exception from employee status beginning really in the 1970s in trucking and then in the taxis and other forms of transportation. And then of course more recently in connection with a wide variety of relationships, so some of them falling under the so-called gig economy category.

 

(00:05:15)

 

 

And what the Bill is designed to do is to provide a fairly rigid test, under which employee status is as a practical matter presumed unless the employer does not control the worker involved and unless the worker is not performing the essence or core essence of the employer’s business. And the third character factor being does the individual really have a separate business of their own.

 

And as, for instance in my house, when a plumber or electrician comes in to fix things up, he or she clearly is an independent contractor, that’s in essence.

 

What AB5 is about, it doesn’t touch the business of the right to organize, because traditionally that’s been a matter of federal law, although very recently the NLRB has excluded the drivers of Lyft and Uber from federal law coverage and California is now engaged in a discussion about whether it in light of that exclusion should or could assert jurisdiction for labor relations purposes.

 

1. Craig Williams: Well Diane, William was talking about the gig economy a little bit and that’s definitely an area that you have mastered. So can you give us what the definition of the gig economy means and how AB5 is going to affect it?

 

Diane Mulcahy: Yeah. I mean the way that I talk about and define a gig economy is if you are not a full-time employee and in a full-time job. So it’s a fairly broad definition that includes consultants, independent contractors, freelancers and on-demand workers.

 

I mean this Bill is really targeted at on-demand workers, primarily those that work for gig economy platform companies like Uber, Lyft, TaskRabbit and Instacart. So it’s much more narrow in that sense.

 

There are many exemptions that are included in the law that really narrow the Bill’s focus to the platform companies.

 

William B. Gould: The Bill is not by any means primarily focused upon or limited to the platform companies, they happen to be at the heart of the dispute and they have publicity wise attracted a great deal of attention and you can say provided the kind of tipping point for the legislation.

 

By the way, if part-time employees were independent contractors and even bigger chunk of the workforce would be independent contractors, I think what the gig economy has done is to provide the kind of — expand the — it used to be prevalent in jazz, where jazz musicians went from club to club to a wide variety of tasks and the companies have been very innovative and very successful.

 

And of course what attracted California’s attention in the Bill that goes far beyond the gig economy is the fact that they were viewed as exploiting their workers, paying them far below what other companies providing the same service, I think approximately 30% difference between other companies that have been suing them under business practices legislation here in California.

 

1. Craig Williams: Diane, California has a large population of farm workers that are itinerant and seasonal. How is AB5 designed to affect them?

 

Diane Mulcahy: I mean I think it’s designed to protect them in the same way that it protects all independent contractors, by extending rights and protections that aren’t normally available to them. I mean I think what’s interesting about our labor market and our labor regulations as it currently stands is that it essentially penalizes you if you are not a full-time employee.

 

So if you choose to work independently, which many independent contractors do work that way by choice, the majority of them in fact, or if you must work that way, if you are not able to get a full-time job, you really are taxed traditionally through a dedicated tax and you are stripped of many of the rights and protections that are awarded only to employees.

 

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I think the concern with this Bill is, I am based in Boston, I live in Massachusetts and we have had a Bill like this on the books for a decade and there are plenty of independent contractors that are still working on gig economy platforms and elsewhere. The law has done very little. There has been no discernible impact on the ability to curb the growth of independent contractors here.

 

So I think it’s interesting that California chose to model their legislation on the same ABC test that has not had the impact that I think that they are looking for through this Bill in California.

 

I also think it’s interesting that California already has laws on the books that deal with the misclassification of workers. So if you look at like Senate Bill 459, which has been passed — it was passed in 2012, Governor Brown signed it; that already gives the state a way to go after companies that are misclassifying workers and find them and levy penalties and additional damages.

 

1. Craig Williams: And the courts here have also established a very definitive, I think seven or eight step test to define what is an independent contractor and what isn’t an independent contractor.

 

William B. Gould: She is quite right in pointing out that Massachusetts does have an ABC — so-called ABC test, which is what I described in connection with California, but so far as we can ascertain, the principal reason, and I take it as a given that she said that it’s had no effect is — the principal reason for that is that the Federal Arbitration Act of 1925 has served as a defense, and that is that every time the Supreme Court and a series of decisions has made it impossible to sue in many — under many employment laws, relegating the claims to employer control and promulgated arbitration procedures. And so far as we have been able to ascertain, the suits that were brought were dismissed in Massachusetts on the grounds of the Federal Arbitration Act.

 

California did learn I think in part from that experience by giving authority to both the Attorney General and to city attorneys to sue, which thus far have — those suits thus far have been deemed not to be covered by the Federal Arbitration Act, and so there is a way open for them to be resolved on their merits.

 

1. Craig Williams: What are the exceptions in this statute? I mean what are the workarounds Diane that can occur here to keep people classified as independent contractors instead of classifying them as employees and becoming obligated to provide benefits?

 

Diane Mulcahy: Yeah, I mean under this law there is a legal presumption that if people are working for you, then they are employees, and the burden of proof is on the employer to demonstrate if that’s not the case, but as a practical matter, in order for the law to have any effect, there has to be a lawsuit. I mean somebody has to say to the employer, we believe that you are misclassifying these workers and you have to demonstrate that.

 

So even though this law goes into effect January 1, it’s not like all of a sudden we will snap our fingers and everybody will be an employee and suddenly have all of the benefits and rights. The way the law is set up is that it’s enforced by legal actions and those legal actions need to take place and those can take a very long time. I mean the court decision that it’s based on, the Dynamex ruling took a decade. So I think there is a lot of uncertainty around how the lawsuits will go.

 

I also think the ABC test is still difficult to enforce. I mean the Massachusetts Attorney General wrote an advisory saying basically this is really difficult to enforce. The usual course of business isn’t defined and there is no judicial precedent that makes it easy to establish guidance and I think the test C, does the worker have a similar business, particularly now if you are talking about an Uber driver, I mean if they are driving for other companies, then are they customarily engaged in this type of work and do they have a similar independent business? It’s difficult.

 

The test is not well-defined, it’s not clear, it’s not objective and I think it’s going to be difficult to implement and enforce this law.

 

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1. Craig Williams: And before we move on to our next segment, we are going to take a quick break to hear a message from our sponsors. We will be right back.

 

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1. Craig Williams: Welcome back to Lawyer 2 Lawyer. I am Craig Williams and with us today is Diane Mulcahy. She is an Adjunct Lecturer in the Entrepreneurship Division at Massachusetts’ Babson College, and author of ‘The Gig Economy’.

 

And with us as well is William B. Gould, the IV, the Charles A. Beardsley Professor of Law, Emeritus at Stanford Law School and former Chairman of the National Labor Relations Board.

 

And with that, we will drop right back into the conversation.

 

William B. Gould: My, my, we have quite a problem here in California, don’t we? I think that there is — there will be a good deal of litigation about this, but I think when it comes to Uber and Lyft, it will be difficult to say that because drivers are working for more than one company, they are in a separate independent business when the employer determines what the fare will be and the employer determines what the percentage of the driver’s take will be, and the employer determines whether the driver will even be able to continue to work for the company or whether he will be or she will be deactivated under procedures that only the company decides for itself.

 

So I think that there is going to be — there is no doubt about the fact that there will be a good deal of litigation, and whenever there are lawyers present we know that that’s the experience.

 

But I think that fundamentally what we did here was we substituted through Dynamex, which was adopted by the legislature and really extended beyond wage and hour to other employment conditions, like unemployment compensation, workers’ compensation, anti-discrimination legislation, which of course independent contractors cannot avail themselves of. Even if you are harassed sexually or if you are discriminated against on the basis of race or sexual orientation, if you are an independent contractor, you are at the mercy of the party that you deal with.

 

So yes, there will be a good deal of litigation, but what we did through Dynamex was substitute a fairly clear standard for a wide variety of standard, so-called primary and secondary standards, which were more than a dozen in number and which by their very nature invited litigation.

 

Uber says that their drivers — they are not in the business of transportation, but they have put that they are in the business of providing an algorithmic way from the platform of making the drivers available to customers.

 

Well, thus far just every court in both the United States and in Europe that has been confronted with that issue has made short work of it and dismissed it. We will see what happens. We don’t know what the judges will say in the future, but the new standard is a much tighter and precise standard and should on balance in the years to come diminish litigation that would otherwise emerge under relatively vague standards in place here in California until Dynamex.

 

1. Craig Williams: Are there going to be any type of definitions put into regulations here as a consequence of that, of the recent statute? Will the Labor Department step up and define the things that Diane is concerned about, William?

 

(00:19:48)

 

William B. Gould: There may well be regulations in labor, but I am not sure that they will — in the final analysis I think the courts, perhaps the Supreme Court will define.

 

I think the one thing that’s of concern and that will have to be flushed out in the litigation will be, if the employer has a number of businesses, in different places what happens then? I think that there is an opening for litigation on the so-called B standard of the ABC test, but my goodness as with so much in the way of legislation, we are dealing with legislation in the labor field that was enacted decades ago that is still being defined in the courts. If that was a basis for denying protection we will never have a protection at all.

 

The fact of the matter is that we’ve become a two-job and three-job economy sometimes because of the workers wishes, but very frequently because workers have to work two or three jobs to keep right on the table and to foster some kind of environment of opportunities for their children.

 

1. Craig Williams: Diane, is this thing really designed to put us back to the times of the gray flannel suit and one job, and someone had stayed at home, cared for the children and a turkey in every pot as the slogans say?

 

Diane Mulcahy: I don’t know. I mean it’s an odd piece of legislation in the sense that if you look at the tools that California has in its legislative and regulatory toolbox to address companies that hire independent workers, I mean, Dynamex is on the books, Senate Bill 459 is on the books. There are ways that there’s also legislation that they could pass that’s much more specific or that’s much more financially pecuniary to the employers’ tax legislation around companies that hire independent workers. There seem to be a lot of like much more concrete direct ways to deal with this issue rather than passing a piece of legislation that requires intense litigation in order to implement and enforce.

 

So I wonder what the intent is for the State. I mean, I think what’s most interesting about California when you’re talking about the politicians is they’re a little bit between a rock and a hard place, because they’re well supported by labor, but also by the technology companies that are implementing these business models that rely on independent workers. And so, it’s hard to take a side if you’re a politician and you rely on that financing. But, I think if California were really intent on extending protections and benefits or trying to get people companies to hire more employees, there are more direct ways to do it.

 

I mean, I think part of the problem with the Bill is that it relies on this very outdated classification system where you’re either an employee or an independent worker and it just doesn’t reflect the way the workforce works today. I mean, a lot of people are both, they are an employee and they work on the side or they are not an employee at all, they just have a portfolio of gigs. So they are an independent worker but for many different clients or employers.

 

So this classification system is having a lot of trouble. We’re having a lot of trouble kind of forcing the workforce to fit into that very old and outdated system.

 

1. Craig Williams: Diane, I need to interrupt for a moment, because William has a short timeframe and we’d like to wrap up and give him the opportunity to put together with his final thoughts and contact information if you’d like to offer it.

 

William.

 

William B. Gould: Thanks Craig. I would like to just sum up by saying I think that what has motivated California’s Act as it has is as I said at the outset the growing inequality which has emerged these past four decades and worsens the gap between rich and poor, I think that this is a theme that we’re going to see both in this country where the gap is worse and in many other Western countries where it exists as well.

 

(00:24:39)

 

A wide variety of remedies are in order to change this and I think that what finally brought this to a head in connection with AB5 was the realization that not only by workers and by unions but also by the business, some portions of the business community which were competed against unfairly, that the employees were being exploited severely and the reason that the Uber and Lyft companies and others toast-mates and the like are fighting this so severely is that putting $90 billion into fighting this on the ballot in 2020 is that they will lose so much in terms of profits, which otherwise would go to themselves rather than wages to the workers whose position has been diminished these past 40 years.

 

1. Craig Williams: William, I thank you so very much for giving us so much of your time today. I know you’ve got a busy schedule, would you like to offer your contact information to our listeners if they want to reach out to you?

 

William B. Gould: Surely, surely. It’s [email protected], that’s probably the best way — that’s the email, best way to reach me.

 

1. Craig Williams: Great, thank you very much.

 

William B. Gould: Thank you.

 

1. Craig Williams: And Diana, I’d like to continue with you and just ask you kind of a follow-up question because as William signed off, it made me think are we ever going to see a set of national standards that can address this or is this going to continue to be addressed piecemeal by the states and I think in some instances here in California, in spite the cities that set different labor standards.

 

Diane Mulcahy: I think all signs in the short-term point towards this being dealt with at State level. Earlier this year, the Federal Labor Department had issued an opinion letter suggesting that the workers of gig economy platform companies are contractors. So the signal from this administration and the federal government has been that they are taking the foot off the gas pedal in terms of looking for ways to incentivize companies or force companies to hire employees instead of independent contractors or extend any rights or benefits or protections to independent contractors.

 

So that’s been the clear signal at the federal level. So I think we are going to — at least under next year is an election year, so everything can change, but as long as this administration continues, I think any changes will occur at the State level.

 

1. Craig Williams: And we’ve seen how the federal government has stepped in or really chosen, I think in some instances not to step in, when you’re dealing with this on a State level, we have the inequities of public employees and private employees and independent contractors. Will there ever be a point where the benefits that are available to a public employee are the same benefits that are available to private employees?

 

Diane Mulcahy: Yeah, I actually don’t think they’re available in the public sector either. I mean, it is true that if you’re a public employee, you still have access to a defined benefit pension, but if you look at those pensions, most of them are currently underfunded. So I think it’s a question mark whether those benefits will materialize going forward in the medium and long term for those workers.

 

And I think the public sector used to offer a sense of job security that was not at a level that was unavailable in the private sector and I don’t think that’s the case anymore either. I think there really is no job security in our economy and one of the reasons that workers are going to independent work is so that they have diverse streams of income and control over the work that they do. They feel like it’s too risky to put all their economic eggs so to speak into one employer’s basket. So I don’t think that sense of security is there.

 

1. Craig Williams: Given what we’ve seen in the change in society from more, we’ve gone from agrarian to industrial and informational and we’ve made even a leap I think beyond the information age into the technological age, is this kind of route shift in the way that our world exists now? Is this the cause of these kind of changes? I know that you and William thought that it started back in the 70s and does that tie in with the changes in the Internet and the computer and the way that life has changed as a consequence?

 

Diane Mulcahy: In many ways, I don’t think this is anything new under the Sun. I mean, people have always worked independently. People in the trades, in the creative professions have worked independently overtime. I think the phenomenon of having being a full-time employee and having a single employer over the course of your career is relatively recent and may only end up being a blip, I don’t know, certainly it looks like that’s the way it’s going, is people return to this independent work.

 

(00:29:56)

 

I do think the technology has — the impact that technology has had is then to remove the friction in the marketplace that made it difficult for people to work independently on projects, assignments, tasks and gigs, and that’s why these platforms and not just Uber and Lyft but also platforms to connect MBAs to consulting projects and software developers to technology projects, all of the platforms and the ability to work remotely has really had a huge impact in driving the growth of independent work in a gig economy.

 

1. Craig Williams: I think you got that spot-on. How do you think that unions have affected this, or is it contemporaneous with the growth of unions for the fall, the beginning of the fall of the union in the 70s?

 

Diane Mulcahy: Yeah, I mean, the unions are really such a small and I don’t want to say insignificant but far or less powerful part of our labor market than they ever have been, and I think what we’re seeing is the erosion of the old employment model where employees were given the rights and the protections and the benefits that the unions fought so hard for.

 

I think where we’re left today is considering how do we want to treat workers, how do we want to treat anybody who works because this distinction, this artificial distinction between an employee and an independent contractor is just increasingly meaningless and blurred and gray.

 

And so the question in front of us is what are the rights and the protections and the benefits that we want to give to people who work regardless of how they choose to work, whether it’s full-time or part-time or some of the time or remotely or in an office or how or how much or where or when, we just need to because the workforce is becoming so fluid, so dynamic and so variable and so entrepreneurial that I think trying to force it into these old classifications and allocate benefits and protections based on your membership in one of those categories is a fairly rigid way of thinking compared to where we are today, and I think that really needs to be updated.

 

1. Craig Williams: Thank you. Yeah, I think you’re again spot-on. Thank you so much.

 

Well, we’ve had some wonderful guests today to talk about AB5 and the issues between independent contractors and employees.

 

William B. Gould, the IV, Charles A. Beardsley, Professor of Law Emeritus at Stanford Law School and Diane Mulcahy, an Adjunct Lecturer in Entrepreneurship Division at Babson College and the Author of The Gig Economy. Sounds like a great book.

 

Diane, would you like to wrap up with your quick final thoughts and your contact information and — as we close out?

 

Diane Mulcahy: Yeah, I mean, I think my final thoughts on AB5 are that this is a bill with a lot of bark and no bite. I think if you look at the Massachusetts experience, I think what’s going to happen when this law goes into effect in 2020 is it’s just going to start the litigation clock and as a practical matter for these companies and for the workers, very little will change.

 

So I hope that California looks at other ways to accomplish its objectives that are more direct and more effective. The best way for listeners to learn about the work that I do in the gig economy or get in touch with me is through my website which is dianemulcahy.com.

 

1. Craig Williams: Great. Thank you Diane, very much appreciate your time today as well.

 

Well, it looks like we’ve reached the end of our program. At this time, we’d like to have you rate us in Apple Podcasts, Google Podcasts or your favorite podcasting app. You can also visit us at legaltalknetwork.com or you can leave a comment on today’s show and sign up for our newsletter.

 

I’m Craig Williams. Thanks for listening. You can join us next time for another great legal topic, when you want legal think Lawyer 2 Lawyer.

 

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