Exceptions to AB5

For many years now, there has been controversy over companies misclassifying their employees as independent contractors.

AB5 (“Assembly Bill 5”) is a recent piece of legislation making all employment relationships in California employer-employee relationships unless proven otherwise by the employer.  

The purpose of the Bill was for independent contractors to be presumed as employees unless the employer can show they fall within one of the exceptions to AB5. 

This article discusses these exceptions

What Was the Intended Purpose of AB5?

Nicknamed the “Gig Worker Bill,” AB5 was written to focus on companies like Uber and Lyft that treat their drivers as independent contractors.

California employment laws requiring employees to be paid minimum wage, overtime pay, and unemployment insurance do not apply to independent contractors.  

This can therefore leave those workers unprotected, without workplace protections, and is why people in these positions want to be considered employees rather than independent contractors. 

While the desired effect of AB5 was to help those in positions like the drivers for Uber and Lyft as noted above, the result has affected the majority of companies in California using independent contractors. 

Understandably, the passing of AB5 will have a significant monetary implication for both employers and employees throughout California. 

So, how is it decided if a worker is an employee?

Dynamex Operations West, Inc. v. Superior Court and the ABC test

AB5 codified and expanded the “ABC” test adopted by the California Supreme Court in  Dynamex Operations West, Inc. v. Superior Court for determining whether workers in California should be classified as employees or as independent contractors.

Under this test, a worker is presumed to be an employee unless the employer can prove otherwise. The burden is on the employer to show the worker is an independent contractor rather than an employee. 

There are three limbs to the ABC test, and all must be satisfied for the worker to be considered an independent contractor: 

1.     the worker is free from control and direction in the performance of services; and 

2.     the worker is performing work outside the usual course of the business of the hiring company; and

3.     the worker is customarily engaged in an independently established trade, occupation, or business.

Who is Exempt From AB5?

The statute was aimed at ridesharing and food delivery companies that treat drivers as independent contractors.

It was, however, broadly written and passed with little discussion which has caused room for interpretation and some confusion. 

Many have raised issue with the last-minute exceptions from the ABC test that appear to not make any sense other than they were ones raised before lawmakers passed the legislation.

The exemptions originally added to the AB5 were: 

  • Doctors 
  • Dentists 
  • Insurance agents
  • Lawyers 
  • Accounts 
  • Real estate agents 
  • Hairstylists 

At eight months since the legislation was passed, more industries have been exempted from AB5.

On September 4, 2020, Governor Gavin Newsom signed AB 2257, which immediately exempts the following professions from the ambit of AB5:

  • Fine artists
  • Freelance writers
  • Still photographers
  • Photojournalists
  • Freelance editors
  • Newspaper cartoonists
  • Translators
  • Copy Editors
  • Producers
  • Cartographers
  • Musicians with single-engagement live performances
  • Musicians involved in sound recordings or musical compositions
  • Insurance inspectors
  • Real estate appraisers
  • Manufactured housing salespersons
  • Youth sports coaches
  • Landscape architects
  • Professional foresters

These new exemptions may be just the start of amendments to AB5 that will carve out other industries and occupations.

Since AB5 came into law on January 1, 2020, employers are already lobbying for changes and it’s unlikely that this will be the end of it. Unsurprisingly, businesses are unhappy with the increased obligations this legislation burdens them with.

It appears that there is an amount of fluidity in the exceptions right now and therefore it’s likely changes may be made to the application of the law as time goes on.

So, What Does The Future Look Like Under AB5?

This is a new piece of law that hasn’t had the chance to be tested and challenged yet. It is still very much in the early stages of its inception and interpretation is still unclear.

The true meaning of AB5 is likely to only be understood once judicial direction is given on a matter being heard at court.  

It seems that there are likely to be some challenges under the AB5 as new requests for exceptions are put through.

Given the expense to businesses of giving workplace benefits to each of its workers who otherwise would not have been entitled, it is likely we will see more businesses challenging the Bill.

AB5 will have far-reaching implications for businesses and workers both in California and beyond. Only time will tell what the true impact of the legislation will be for both parties. 

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