Gig Worker Bill: A Lousy Way to Make Law
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California’s early 20th century reformers sought to thwart an obviously corrupt political system that benefited entrenched interests and ignored the larger public.
Their reforms included ways for voters to bypass the system through direct ballot box action — the initiative, the recall and the referendum.
The recall — forcing elected officials to vacate their positions — is the least used but pops up occasionally, most obviously in the 2003 recall of a governor, Gray Davis, just a year after he had won a second term.
Referendums — challenging laws passed by the Legislature — are more frequent, but still relatively rare. This year’s ballot includes one, Proposition 25, which is sponsored by the bail bond industry to overturn a landmark law outlawing cash bail for criminal defendants.
However, in the late 20th century, the initiative — proposing new laws by gathering signatures on petitions — evolved into a frequently employed vehicle for big dollar conflicts between powerful interests, particularly business and unions. Every election since has featured multiple ballot measures, the most famous or infamous being Proposition 13, the iconic, 1978 property tax limit.
The 2020 ballot is no exception. One of its many measures is Proposition 15, which would partially undo Proposition 13. It’s a union vs. business duel, as is Proposition 22, which would alter one of recent history’s most controversial bits of legislation, Assembly Bill 5.
AB 5 codified a 2018 state Supreme Court decision, dubbed Dynamex for the company involved, that cracked down on employers who classify workers as independent contractors rather than payroll workers. The Dynamex decision created a tight three-point test to qualify as an independent contractor that would, it was estimated, affect the status of more than two million Californians doing what’s been dubbed “gig work.”
The court case and AB 5 were unabashedly championed by labor unions, which depicted gig workers as mercilessly exploited serfs. However, union leaders were also plainly worried that the expansion of gig work would undermine union membership.
The unions’ highest profile targets were transportation services such as Uber and Lyft, which provide taxi-like dispatching services for drivers using their own vehicles, or delivery services such as Dynamex.
AB 5 not only codified the Dynamex decision, but granted exemptions to a clutch of specific occupations and professions that could not be easily unionized, such as physicians, lawyers, insurance and real estate agents, stockbrokers, barbers and hair stylists.
Uber, Lyft and other transportation firms immediately attacked the new law via initiative, resulting in Proposition 22, which would carve out a narrow exemption for them, but not touch other occupations.
Other exemptions were proposed in dozens of bills but AB 5’s author, Assemblywoman Lorena Gonzalez, a San Diego Democrat and former union official, retained tight control, adding a few more jobs to the exemption list.
It’s never been clear why some exemptions were granted and others denied. The mysterious process seemed to respond to those making the loudest noise, such as writers, photographers and others in media trades. The newspaper industry gained an exemption for those who toss papers on sidewalks, citing economic hardship.
It’s a lousy way to make law — pass a sweeping decree and then exempt a few favored interests. It resembles the time-dishonored practices of granting specific exemptions from the California Environmental Quality Act’s laborious processes, or from the ridiculously archaic “tied house” law governing the liquor business.
Reasonable people can differ on whether gig work is exploitive or liberating, but the irrational implementation of Dynamex is the sort of opaque insider game that pioneer political reformers were battling.
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