AB 5 opponents want the employee classification law paused during pandemic

State policymakers trying to repeal Assembly Bill 5 are pushing to suspend the worker classification law through the COVID-19 pandemic, arguing that doing so will boost healthcare resources and give relief to gig economy workers facing decreased demand and wages.

“Once lawmakers return to the State Capitol, Senate Republicans intend to make SB 806, our repeal and replace AB 5 legislation, an urgency measure,” Senate Republican Leader Shannon Grove said in an email Friday.

“The coronavirus pandemic highlights the need for workplace flexibility as well the essential role that freelancers play in the movement, delivery and provision of goods and services,” Grove added. “Health care providers want to work, but can’t because of the inflexible rules in AB 5. In my district, I am aware of about 70 certified nurse anesthetists who want to go to work to provide the crucial health and safety needs of our community, but they are forced to sit at home because of AB 5.”

Assemblyman Kevin Kiley, R-Rocklin, who introduced another AB 5 repeal bill but failed to secure enough votes, said in an interview Friday that suspending AB 5 could open up more jobs to struggling workers.

“We now have this statewide lockdown,” Kiley said. “How can we not suspend the law that’s making it impossible for a lot of people to work inside the home? That’s what a lot of freelancers do: They’re able to practice their craft and offer their skills remotely.”

“This is something the governor has the authority to do under the emergency services act,” Kiley added. “I think what would work best is if he says the law is suspended for the rest of this year.”

AB 5, which automatically classifies workers as employees unless they pass a three-pronged ABC test, has faced challenges from a wide range of opponents since it took effect Jan. 1. In addition to bills introduced by opposing policymakers to either exempt certain workers from AB 5 or repeal the law altogether, opponents have also filed lawsuits against the state. Gig economy companies Uber, DoorDash, and Lyft are additionally funding a November ballot measure that would prevent some rideshare drivers from being classified as employees.

But as the coronavirus pandemic ramps up, some groups representing California rideshare and delivery drivers are pushing the state to do the exact opposite of what Republican policymakers are asking: enforce AB 5 more aggressively. Classifying drivers as employees would give them access to unemployment benefits as demand for rides and delivery wanes, according to spokespeople from Gig Workers Rising and Rideshare Drivers United.

“All workers deserve basic protections, right now more than ever,” AB 5 author Assemblywoman Lorena Gonzalez, D-San Diego, said in statement Friday. “We shouldn’t suspend the right of vital medical personnel to claim workers compensation if they get the virus at work. Uber and Lyft drivers who may be able to access unemployment insurance because they are misclassified, shouldn’t be denied that right. That’s what repealing AB 5 would do.”

Gonzalez added the federal government needs to pass a federal bill that would provide cash relief for independent contractors who are out of work.

Ronald Zambrano, who represents employees as the employment litigation chair at West Coast Trial Lawyers, said neither suspending nor enforcing AB 5 more aggressively would help struggling gig economy workers. The idea that AB 5, specifically, is preventing businesses from hiring in the current climate is unrealistic, Zambrano said.

“Nobody’s making a business decision today because AB 5 is on the books,” he explained.

While Zambrano said supports AB 5, he believes pushing for strict enforcement is also a political move. Referencing pending litigation on the issue, he added, “That’s going to be the deciding factor. ... We just have to wait to see what the courts do.”