OOPS! A law aimed at preventing exploitation of gig workers has instead taken away their freedom to choose

 Stephen Carter

By Stephen Carter Bloomberg View

Published Jan. 10, 2020

California's effort to reshape the gig economy hit a significant roadblock this week when a federal court issued a temporary injunction prohibiting the application of the state's new rules to truck drivers, citing a conflict with federal law. The roadblock is by no means fatal, but it's not insignificant - not when there are so many lawsuits left to be decided.

As you may recall, last year California passed Assembly Bill 5, which went into effect on January 1, 2020. The new law, widely known as AB-5, creates a strict test for determining whether an individual who provides services to a company is an independent contractor or an employee. The law treats ride-hailing drivers, computer coders, freelance writers, and other gig workers as if they are all being exploited by the businesses that pay them.

Once classified as an employee under AB-5, the individual is entitled to the full protections of the Golden State's byzantine employment laws. The classification, moreover, is mandatory. An individual who provides a service for money - say, writing a column - cannot opt out if he or she prefers independence.

Critics have been predicting disaster in the California gig economy, but it's far too early to judge. On the other hand, we can state with confidence that the new law is going to prove a litigation magnet. Uber and Postmates are among those who have sued to stop enforcement of the AB-5, claiming among other things that it's unconstitutional. Lawsuits have been filed by freelance journalists. And more are likely on the way.

At the same time, companies are bracing for an expected flood of claims by California residents seeking to be reclassified as employees rather than contractors. Many businesses are taking preemptive action. Even Vox Media, which supported AB-5, has told some 200 contributors to its California sports blogs that they will lose their regular writing gigs.

All of which brings us to the New Year's Eve decision by a federal district court in California Trucking Association v. Becerra. The trucking industry is the subject of multiple interlocking federal regulatory regimes, and California should have known better than to claim control over it. Under the U.S. Constitution, whenever state and federal law clash, federal law wins.

The problem, the court explained, is that "AB-5 effectively mandates that motor carriers treat owner-operators as employees," rather than the independent contractors that they are under relevant federal statutes. To allow enforcement, the court concluded, would constitute irreparable harm. And although the injunction is only preliminary - that is, issued in advance of hearing all the evidence - it's hard to imagine that the state will prevail in the unlikely event that the case ever comes to trial.

The other lawsuits are tougher to evaluate. For example, a principal claim made by Uber and Postmates is that AB-5's many exemptions make the law "irrational" and thus a violation of equal protection. And the list of exclusions is indeed a crazy quilt: Commercial fishermen and beauticians, real estate agents and doctors, accountants and barbers - just about every profession that has a lobby has an exemption.

And then there are lawyers. Big law firms for years have hired freelance attorneys as independent contractors to work on litigation matters without becoming employees. One might think that AB-5 would require the free-lancers to be reclassified. But one would be wrong, because the same lawyers who will argue over which entities the law should cover naturally took care to secure exemption for themselves.

In a nice bit of irony, even auto repossession agencies are excluded. Thus we can imagine the scene: if one of those formerly independent Uber drivers or truckers should miss a couple of payments, the guy who comes to tow the vehicle away remains not an employee but a contractor. Why? Because the company that sends him has lobbying clout that the trucking companies lack.

A fantastic mess to be sure - but I'm skeptical that a mess even this fantastic raises serious constitutional questions. As a formal matter, the Supreme Court has said many times that a statute must have a rational basis. But that's usually been part of the argument for upholding a law. The claim that a law is unconstitutional because of its irrationality is one that courts rarely find persuasive.

Still, a statute can be perfectly constitutional and nevertheless remain a dreadful idea. AB-5 falls within that category. According to the bill's principal sponsor, the goal is to protect the "more than a million Californians" who "have been misclassified by employers looking to cut costs at the expense of workers."

But it's hard to know which workers are misclassified unless we know for sure what workers want. There will always be some potential hires who will prefer the flexibility that comes with being independent contractors. Even if some gig workers are subjected to exploitation, it's an awfully blunt solution to take away from everyone else the freedom to choose.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. .