Law professors urge state to codify Dynamex test in law

Seventy-five law professors from across the nation signed a letter Monday calling on Gov. Gavin Newsom and the Legislature to support AB 5, a bill that would codify the "ABC" test for distinguishing between employees and independent contractors.

Drafted by UC Hastings College of the Law Professor Veena Dubal -- and including other law professors, labor economists, political scientists and historians as signatories -- the letter urges Newsom and the legislators to "lead the world -- with the strongest law on record to protect workers from misclassification."

"We unequivocally support the California Supreme Court's decision in Dynamex v. Superior Court of Los Angeles ... and the legislative effort to make employee-status the default under state law," the letter reads.

Dubal said Tuesday the letter came after months of discussion among academics worried that legal arguments had been bogged down by "back door" conversations between labor unions and gig economy companies.

"There were a lot of political conversations that have been steering away from the simplicity and importance of the test," Dubal said. "We wanted to bring it back to a legal conversation and say, 'Look, if you carve workers out of this test, you're actually making a legal mistake here.'"

That mistake, the academics argue, is the "carveout" of workers from being classified as employees, which the 2018 Dynamex decision now presumes unless workers pass the three-prong "ABC" test. Under Dynamex, workers are only independent contractors if they are a) free from the hirer's control and direction, b) work outside the usual course of the hirer's business, and c) engage in the same kind of work as the hirer independently. Dynamex Operations West, Inc. v. Superior Court, 2018 DJDAR 3856.

Dubal said all gig economy workers should qualify as employees regardless of how many hours a week they work -- in particular those who use mobile platforms to manage their work. The academics argue in the letter those workers "are algorithmically controlled in the traditional ways that employees are controlled."

"Whether they're using it to make ends meet or save for a vacation, they're using it to generate money," she said. "Therefore, they're working on the app and should be protected by these same laws."

With the bill expected to hit the Senate floor next month, Dubal said the letter should remind legislators what to focus on in preparing for the vote.

"We're three weeks out," she said, "and we just wanted to make sure that the legal analysis was clear for all parties."