‘Fixing’ Assembly Bill 5: Better If It Never Existed At All
California’s Assembly Bill 5 has not been broken, but given a couple of recent developments, it might soon be showing some cracks.
On May 20, Assembly Bill 1850, which would exempt some professions from AB5, a law that virtually outlaws independent contract work, was passed 7-0 by the Assembly Labor and Employment Committee.
Under AB1850, photographers and videographers (as long as they don’t replace an employee performing the same work), writers and editors (as long as they don’t replace an employee doesn’t the same work at the same volume), youth sports coaches, musicians (minus those who perform in orchestras, musical theater, or at theme parks), songwriters, and other individual workers will be classified as independent contractors rather than employees. AB5, passed and signed last year, caught nearly every freelance worker in the state in its sweeping dragnet. Only a few job classifications escaped with exemptions.
Two days later, a ballot measure that will give voters a chance to decide if app-based drivers should be exempt from AB5 qualified for the November election. It if passes, Sacramento’s capacity to reclassify rideshare drivers as employees who have to be hired, which was the primary objective of AB5, will be sharply limited.
While an AB5 weakened by AB1850, introduced by the same Lorena Gonzalez who authored AB5, is better than the bill that became law, it’s an imperfect remedy. And it’s still politics over prudence. Benjamin Ebbink, an attorney at Fisher Phillips, says AB1850 appears to be “intended to serve as the preferred vehicle for Gonzalez and labor to control the discussion in 2020 as well.”
The better choice would have been to have never passed a bill to begin with. No compelling reason existed that could legitimize AB5’s government intrusion into private affairs.
But Sacramento was determined to pass legislation to appease labor unions, that saw in independent contract workers a new and rich source of membership dues, and a few noisy rideshare drivers who didn’t like their work arrangements (and whose protests were organized and supported by unions and allied groups who want to unionize rideshare drivers). AB5 was the vicious chimera that was created.
It could have been a less-harmful bill if lawmakers had given the process more thought — or were less beholden to union bosses. Earlier this year, we suggested that:
Rather than carving out exemptions by trade, profession, or industry, the exemptions should have been across the board — those who didn’t want to be covered by the law could opt out no matter where they worked.
Even better: The option should rest with those who wish to be covered. They could actively opt in, leaving all others to continue as they had before without having their lives interrupted.
The criticism of such an alternative would of course be that those who want to be hired employees couldn’t get jobs in the gig economy because they would have to compete in the job market with those who would choose to work as independent contractors. It’s a legitimate point. Gig economy companies whose business models, profits and even existence rely on freelancers would prefer contract workers over hired employees.
But that’s the way choice works. As has been said and written many times, freedom is often messy: Not all are happy with the outcomes it produces. It’s counterpart, however — a government that blindly plans, mindlessly manages, and vindictively meddles — is much worse.
Kerry Jackson is a fellow with the Center for California Reform at the Pacific Research Institute.