California’s AB5 legislation took effect January 1, and the predictable fallout has begun.
Thousands of jobs have already been lost, as operations begin the process of moving work out of the state. Vox alone had to get rid of 200 writers in California. And as CNN reported, many small town papers with a limited number of writers face huge challenges and aren’t sure they can even survive without a steady number of freelance writers.
Workers are fighting back, with a number of challenges already filed, seeking injunctions against enforcement of AB5.
The California Trucking Association came first, filing in Southern District of California. Judge Roger Benitez in San Diego issued a temporary injunction this week, as applied to truck drivers, finding a likelihood that the statute is preempted as it affects interstate trucking under the Federal Aviation Authorization Act of 1994.
Uber and Postmates have also filed an objection in U.S. District Court, Central District of California, arguing that the statute is irrational and unconstitutional as applied to workers and companies in the on-demand economy.
This complaint argues that the targeting of app-based workers and platforms, treating them disparately from traditional workers, violates the Equal Protection Clauses of the United States and California Constitutions. The complaint argues that the law is “unconstitutional even under the most minimal ‘rational basis’ standard of judicial review.”
Finally, the Pacific Legal Foundation, has also filed on behalf of the American Society of Journalists and Authors and the National Press Photographers Association, objecting to the scope of the law, causing reduced work or outright firing of thousands of independent contractors across California. This complaint argues that the statute violations the First and Fourteenth Amendments to the United States Constitution. The statute singles out ASJA’s and NPPA’s members who are writers, editors, still photographers, and visual journalists by drawing unconstitutional content-based distinctions about who can freelance—limiting certain speakers to 35 submissions per client, per year, and precluding some freelancers from making video recordings.
Again, the New Jersey legislation S4204 would codify the NJ Department of Labor’s interpretation of the ABC test which is even more extreme than that adopted in California. We continue to believe it would be advisable to permit these processes to play out before codifying new job-killing restrictions on voluntary working arrangements.
Please contact Alida Kass if you would like to discuss this issue further.