As a Lawyer for Freelancers, I Find California’s New Gig Worker Law (AB 5) Maddening

Note: In general, the content on Law Soup is presented in a neutral, straightforward way. This is an opinion piece, and as such, contains my opinions!

Rube Goldberg’s Professor Butts and the Self-Operating Napkin (1931) [Public Domain]

Ever heard of a Rube Goldberg machine? It’s a concept meaning an unnecessarily complicated system. And wow, is the new legal framework for determining who is a freelancer in California unnecessarily complicated!

For starters, you need to use one of 2 different tests to determine whether you are an “independent contractor” (aka freelancer) or an employee: (1) the “Borello test” and (2) the “ABC test” (aka “Dynamex test”). How to know which test to use? Well, another test, of course. Yes, a test to determine which test to use! The way it works is that if you meet certain criteria, you can use the Borello test. Otherwise, you must use the ABC test. Got all that? If not, read our in-depth explanation.

Not only is the new “Gig Worker Law” (aka AB 5) absurd in its complexity, but also in its strict limits on freelancers and the companies that hire them. The new law is supposedly intended to protect workers, but for many workers it actually does more harm than good.

AB 5 is aimed at getting employers to classify more workers as employees rather than independent contractors, since independent contractors are not protected by most employment laws such as break and overtime requirements. While this may make sense in industries that involve manual labor, such as manufacturing, it is not so applicable to, say, freelance writing.

As a lawyer who works with freelancers such as writers, journalists, designers, etc, I know that many – if not most – freelancers do not feel exploited, and prefer freelance status for the freedom to set their own workloads, among other reasons. It allows them to determine whether and when to take on an extra gig or not. Why force them to be employees if they don’t want to be?

Of course, they may not even get the chance to continue as employees. Unfortunately, many freelancers are losing work as some companies decide to drop California freelancers altogether rather than attempt to comply with the complicated and costly rules.

Some choose to get angry at these companies for taking this unfortunate action. But really, can you blame them for not wanting to deal with the absurdity and extra costs of this system, when many, particularly media organizations, are simply trying to survive in the digital era?

Thankfully, lawmakers are working on a fix to this problematic new law. Hopefully it will become something much simpler and less burdensome for knowledge workers and the companies that hire them. But the complexity of law is a larger problem that we as a society must tackle. As I discuss in my new book, Law is Not for Lawyers (It’s for Everyone), the effect of the thousands of laws that we must follow (with an increasing number each year) is that it actually undermines the rights of the very people many of the laws seek to protect.

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