The Independent Women’s Law Center (IWLC) filed an amicus brief last week in support of plaintiff Lydia Olson who is challenging the constitutionality of California’s AB5 law.
The IWLC asks the Ninth Circuit to enjoin AB5 while a lower trial court considers the merits of Olson v State of California, which is currently pending.
AB5 forces companies to reclassify many independent contractors, such as Uber drivers, photographers, freelance writers and other gig workers, as employees.
“We believe AB5 has a negative impact on women, many of whom want to have the flexibility to work from home or to work where and when they choose,” said Jennifer C. Braceras, director of IWLC. “We believe that it’s particularly important now with the advent of the coronavirus pandemic because with schools closed and stay at home orders in place, flexibility is much more important even now than it was before.”
Olson is requesting that the federal appeals court reverse the denial of her request for a preliminary injunction, which would return California labor law to pre-2020 status quo while her case is litigated.
California’s AB5 aims to limit women’s choices and the choices of gig workers more generally, according to IWLC’s Amicus Curiae brief filed on May 14, and AB5 forces workers and their clients into a one-size-fits-all traditional employment arrangement, which will ultimately cause freelance work to be scarce by creating risk for companies that prefer contracting with independent workers.
“The state legislature in California has been lobbied by a lot of powerful groups to get their industries exempted and so the legislature is very well aware that there are freelancers in lots of industries that don't like this law but they're only responding to the ones with powerful lobbying groups,” Braceras told the Southern California Record. “The exemptions are arbitrary and there's no reason why some workers should be exempted and others shouldn't even within the same industry.”
For example, the American Society of Journalists and Authors Inc. (ASJA) and the National Press Photographers Association (NPPA) are also challenging AB5, alleging that its 35-submission limit and videography exception violate their members’ rights under the U.S. Constitution’s Fourteenth Amendment Equal Protection Clause and First Amendment. But U.S. District Judge Philip S. Gutierrez decided that ASJA and NPPA had not argued viable claims.
“The groups of exemptions (marketers, graphic designers, grant writers, and travel agents, on the one hand, and photographers, photojournalists, freelance writers, and editors, on the other) attacked by Plaintiffs are not “similarly situated” for constitutional purposes and, even if they were, there is a conceivable, rational basis for the distinctions,” Judge Gutierrez wrote in his decision.
Like Olson, ASJA and NPPA have appealed to the Ninth Circuit.
“There is a growing list of freelancers who are losing jobs and a list of clients who won't hire California freelancers because of AB5 so it's hurt a lot of people,” said Milton C. Toby, president of ASJA.
“Clients are concerned about possible litigation if somebody goes over 35 submissions, which is the current law, and then the freelancer is suddenly deemed to be an employee and the clients don't want them to be employees.”
In Olson’s case, she made the most of flexibility working independently as an Uber driver afforded her while caring for a spouse who was stricken with multiple sclerosis, according to the brief.