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As the legislative session gets rolling, a clearer picture of the efforts underway to amend or roll back AB 5, the law limiting the use of independent contractors, is starting to emerge.
Assemblywoman Lorena Gonzalez, the bill’s author, already announced that AB 1850, which doesn’t include details yet, will be a vehicle for changes to the law.
But several other measures from Republican lawmakers have emerged – some that seek to exempt more groups of workers from the measure, and some that seek to toss it out altogether in various ways.
First, the repeal measures: AB 1928 would repeal AB 5, which is based on a set of factors determining whether someone should be counted as an employee based on a court ruling known as Dynamex, and instead apply the test laid out in S.G. Borello & Sons, Inc. v. Department of Industrial Relations. The authors of that bill have separately written a constitutional amendment that would also overturn AB 5.
The Senate Republican leader, Sen. Shannon Grove, wrote SB 875, which would exempt interpreters and translators.
Then there’s AB 1925, which seeks to exempt small businesses from AB 5. It defines a small business as one that is independently owned, “is not dominant in its field of operation,” has fewer than 100 employees and averages under $15 million in gross receipts for the previous three years.
That brings us to two bills written by Sen. Pat Bates, who represents southern Orange County and parts of northern San Diego County, that attempt to address criticisms made by the most vocal opponents of AB 5: freelance journalists.
One would exempt newspaper delivery carriers from the bill. As AB 5 was being debated last year, Gonzalez made it clear she believed carriers should be included in the measure but agreed to a one-year exemption to give everyone time to sort things out. Bates’ bill would make the exemption permanent.
The other bill, SB 868, would exempt all freelance journalists regardless of how many submissions they make to a single publication in a year. AB 5 currently limits freelancers to 35 pieces per publication before that publication would be required to make them a part-time or full-time employee.
“I’m clearly not of the mind that we should be picking winners and losers of entrepreneurs. … To have this sweeping impact to individuals who are professionals and who have been performing meritorious service through their professions is just untenable,” Bates told me.
When I spoke with her about the bill this week, Bates focused specifically on the work of freelance journalists and said newspapers should be able to treat them like service providers, as opposed to journalists who are performing part of the core business of a journalism entity.
“What about the people right next to our fighting forces on many continents where we have wars, and they’re taking pictures and sending them out to various newspapers but they’re not all the same newspaper nor are they under the same ownership. Are they going to be employees of the L.A. Times or the San Francisco Chronicle?” Bates said. “So only the L.A. Times gets a picture of somebody on the front lines taking pictures of the mayhem that goes on in wars? What they do is quite different from what the paper does. They’re providing a service to the paper. As far as I’m concerned, they’re a service provider.”
Curiously, though, Bates’ bill might not actually exempt freelance photographers at all.
AB 5 has separate sections addressing freelance journalists, and photographers and photojournalists. Bates’ bill only addresses freelance journalists: “For purpose of the clause, ‘freelance journalist’ includes, but is not limited to, a freelance writer, editor, or newspaper cartoonist,” the bill says.
It’s possible the “is not limited to” could cover freelance photographers, but if the entire purpose of the bill is to protect that group specifically, why not mention them explicitly? AB 5 does. The bill seeking to exempt them from it does not.
– Sara Libby
Speaking of Republicans Rallying Against AB 5 …
The Republican Party of San Diego County is hoping to capitalize on the backlash to AB 5 by supporting a candidate running against Assemblywoman Lorena Gonzalez whose campaign is laser-focused on opposing the measure.
John Vogel, an IT analyst from Chula Vista, filed his paperwork at the last minute in December, and he’s made a “full and immediate repeal” of AB 5 the centerpiece of his 80th Assembly District challenge.
Whether Vogel can translate opposition into campaign cash is still an open question. He didn’t return an interview request, and there are no campaign finance reports available on the California Secretary of State’s website.
But Vogel is at least getting a boost online from independent contractors, some of whom don’t live in his district. As one woman from Los Angeles recently wrote in a freelancers’ group on Facebook, “That he wants to repeal AB5 is all I’d need to know to support him.”
In recent months, two groups of freelance journalists have joined forces with a conservative legal foundation to overturn the law, arguing that it denies them constitutionally protected rights. Other lawsuits filed by various California-based companies, including Uber, are also pending.
With or without outside financial help, anyone challenging Gonzalez is going to have an incredibly difficult climb. The 80th District extends from City Heights and southeastern San Diego to the border, and the voter registration is mostly Democrat. In 2018, Gonzalez won with 75 percent of the turnout. Her campaign was sitting on nearly $900,000 cash at the start of 2020.
But Vogel’s last-minute entry into the race is having one immediate effect — on the other Republican in the race.
Lincoln Pickard, a retired contractor, unsuccessfully ran against Gonzalez in 2016 and 2018, and he’s running again this year. But because he’s a member of the Republican Party of San Diego County’s central committee and because the GOP chose to endorse Vogel, Pickard is unable to campaign on his own behalf.
Republican bylaws state that central committee members cannot publicly advocate for candidates who are not endorsed by the party. That means Pickard is prohibited from asking people for their vote. If he does, the party could remove him from the central committee or censure him.
On his website, Pickard doesn’t even mention that he’s running for Assembly. Instead, he simply encourages people to vote against Gonzalez.
Pickard has been critical of Republican Party Chairman Tony Krvaric in recent years and said Krvaric has tried cutting him out.
“Nobody takes Lincoln seriously,” Krvaric told me in a text message. “Hence John Vogel stepping up to provide a credible alternative to Lorena.”
At the same time, Pickard said he doesn’t think the 80th Assembly District race is winnable — for any Republican, including himself.
“I just feel like we should have a candidate in any race,” he said, “so the people have a chance to vote for their values rather than hold their nose and vote for someone they don’t agree with.”
— Jesse Marx
Golden State News
- “For the first time in recorded history, tiny bark beetles emboldened by the climate crisis have started to kill” California’s giant sequoias. (The Guardian)
- The Fresno Bee uncovered some devastating details about injuries inside an Amazon warehouse there.
- George Skelton writes that Sen. Toni Atkins’ maneuvering on SB 50 last week is a “textbook example” of skillful leadership. (Los Angeles Times)
- San Francisco is eliminating cash bail. (NBC Bay Area)
- Here’s an explanation of the “climate resiliency” bonds on the statewide ballot. (CalMatters)