Signed into law in September 2018, Assembly Bill 5, has generated outrage from a wide range of Californians, from musicians to therapists to truckers and freelance journalists. The new law codified the more expansive ABC test previously set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 416 P.3d 1 (Cal. 2018), for ascertaining whether workers are classified as employees or independent contractors.
AB5 and its subsequent amendments, now codified in Labor Code 2778 requires businesses to classify more workers as employees entitled to benefits like sick leave and overtime pay. But some workers affected by AB 5 say it’s caused them nothing but grief and anxiety.
Thus, the American Society of Journalists and Authors and the National Press Photographers Association filed a federal lawsuit challenging the new law on First Amendment and Equal Protection grounds, The Society of Journalists and Authors (ASJA)is the nation’s largest professional organization of independent nonfiction writers. Its membership consists of more than 1,100 freelance writers.
The National Press Photographers Association (NPPA) is an American professional association made up of still photographers, television videographers, editors, and students in the journalism field. It was founded in 1946. As of 2017, NPPA had total membership at just over 6,000.
The lawsuit was dismissed by the trial court.. In a 3-0 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco in October 2021 said the California law regulates economic activity and does not interfere with freedom of speech or the press in the published case of ASJA v Bonta
The panel acknowledged that although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, but such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation.
Addressing the Equal Protection challenge, the panel held that the legislature’s occupational distinctions were rationally related to a legitimate state purpose.
The Plaintiffs in that case file a Petition for Writ of Certiorari with the United States Supreme Court on February 22, 2022, hoping to overturn the decision of the 9th Circuit Court of Appeal
The Supreme Court, however, denied review without comment Monday of the appeal by the two organizations. For this reason the dismissal of their base by a federal judge and the approval of that dismissal by an appellate court has no further avenues in the judicial system.
“The court’s decision to not hear our appeal is a loss for the thousands of freelancers who have built thriving careers through the freedom and flexibility that independent contracting provides,” said Jim Manley of the Pacific Legal Foundation, who represented the American Society of Journalists and Authors and the National Press Photographers Association.
Attorney General Rob Bonta’s office, in a filing defending the state law, told the court that AB5 “does not regulate speech or differentiate between speakers based on their message.”
In a separate case, the Supreme Court rejected an appeal last October by trucking companies challenging the classification of truck owner-operators as employees under AB5. An appeal by another trucking group is still pending before the high court.
The ride-hailing companies Uber and Lyft won an exemption from AB5 in November 2020 when state voters approved Proposition 22, allowing them to classify their drivers as contractors, after a campaign in which the companies spent more than $200 million.
But an Alameda County judge struck down Prop. 22 last August, saying the measure interfered with the Legislature’s authority under the state constitution to regulate workers’ compensation and also addressed multiple subjects, violating another constitutional standard. The case is now awaiting review by a state appellate court.