Gig workers still on agenda as Legislature plots 2021

As it does nearly every year, the California Legislature will dive into labor law again in 2021. These fights could concern the pandemic, renewed battles over college athletes and the contractor versus employee classification question

At the center of the debate will remain Dynamex Operations West Inc. v. Superior Court of Los Angeles, the 2018 California Supreme Court ruling that changed the standard for when a company can label a worker as an independent contractor. The Legislature codified that ruling in 2019 as AB 5. This led to the most expensive ballot measure fight in state history. Gig work companies including Uber Technologies Inc. spent $203 million to persuade voters to pass Proposition 22, which exempts their drivers from the law.

AB 5 author Lorena Gonzalez, D-San Diego, said last month she would likely introduce more legislation this year related to Dynamex. This could include another bill aimed at gig economy companies.

She didn't include any such legislation among the four bills she's introduced so far this year. But Assembly Kevin Kiley, R-Rocklin, wrote a bill designed to undo the court decision, Dynamex Inc. v. Superior Court, 2018 DJDAR 3856. His bill, AB 25, would repeal the ABC test put in place by the court and reinstate the Borello test that governed independent contractor classification previously.

"I've introduced legislation to fully repeal AB 5," Kiley tweeted on Friday. "Ironically, I'm also co-authoring an unrelated bill called AB 5. The Assembly really should avoid reusing numbers for the most corrupt bills in state history."

The latest iteration of AB 5, incidentally, would take away $2.4 billion from California's high-speed rail project. Neither is likely to pass, given Democrats hold supermajorities in both chambers.

Sen. Nancy Skinner, D-Berkeley, will revisit the cause that helped her make national news in 2019. That's the year that Gov. Gavin Newsom signed SB 206, which stated that college athletes from schools with more than $10 million in annual sports revenue can profit from their own likenesses.

The National Collegiate Athletic Association and other bill opponents argued the law would create an uneven playing field between states and that it violated recent court rulings. These include a case that helped inspire the law. Former UCLA basketball star Ed O'Bannon sued for royalties after seeing himself clearly depicted, though not by name, in a video game. O'Bannon v. NCAA, 802 F.3D 1049 (9th Cir. 2015).

Several states, including ones dominated by Republicans, quickly introduced similar legislation after Newsom signed SB 206, effectively forcing the collegiate sports governing body to capitulate.

Skinner's new bill, SB 26, would move up the enforcement date of SB 206 one year, from 2023 to Jan. 1, 2022, or the date of the NCAA's own proposed rules on athlete likenesses, whichever comes first. It would also remove what she called "unnecessary restrictions" in the NCAA's proposed rules -- for instance, clarifying that an athlete can identify the school they play for in an advertisement.

"It's good that the NCAA has followed California's lead, but their proposed rules changes come up short," Skinner said in an emailed statement. "The NCAA doesn't appear willing to give student athletes the autonomy and full range of benefits that California law does. This new bill will ensure that California athletes are not unfairly and unnecessarily restricted."

If passed and signed, SB 26 could set up a new set of conflicts between the state and the sports governing body. However, both sets of rules would make it clear schools cannot pay athletes directly and that athletes can't sign contracts that would directly conflict with deals already signed by their schools.

Another new bill, AB 95, would guarantee employees bereavement leave. It would require companies with 25 of more employees to offer 10 days of unpaid leave "upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner." Companies with fewer employees would need to offer three days.

While the bill doesn't mention the pandemic, it appears to have been in part inspired by it. According to the latest figures from the state, the number of daily COVID-19 deaths is quickly rising.