Proposition 22 – and how AB2257 didn’t fix the issues with AB5 that needed to be fixed

A comment found on HN:

It was not a law that put us in this position, it was the Supreme Court of California. In any case, AB2257 fixes the issues with AB5 that needed to be fixed.

hacker guy

How did AB2257 fix the issues with AB5 that needed to be fixed? I’m genuinely curious. From what I’ve read it still boils down to the interpretation of the “ABC Test“.

For those unfamiliar with the ABCs…

The provisions of AB 2257 sets forth the ABC Test in statute. The statutory ABC Test codified the language used by the state Supreme Court in its Dynamex decision. “A person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

  • A. The person is free from the control and direction of a hiring entity in connection with the performance of the work, under the contract for the performance and in fact.

  • B. The person performs work outside a hiring entity’s usual course of business.

  • C. The person is customarily engaged in an independently established trade, business, or occupation of the same nature as the performed work.

Let’s apply the ABC test to an Uber Driver (Umar); and for comparison a violinist (Viola, ironically) who is often hired by Joel Nelson Bay Area wedding Productions (JNP) [joelnelson.com/weddings].

The person is free from control and direction of the hiring entity for the performance of the work

A

Umar is given the location of the pickup, and the dropoff destination. The Uber app suggests pickup and dropoff routes, however Umar has some flexibility on which routes he takes, how fast or careful he drives, how chatty he is, the cleanliness of his vehicle, and any ‘extras’ (e.g. phone charger) he provides.

Viola is given the location of the venue and a list of songs to play. She has some flexibility in the specific musical arrangements of those songs, and her performance. Ultimately she is trusted to show up on time and play, to her ability, the requested songs.

The person performs work outside a hiring entity’s usual course of business.

B

Umar provides transportation/taxi services. Uber will claim they are not a ‘transportation’ company, but a software company that caters to the vehicle-for-hire, food delivery, courier/freight & package delivery industries. They will claim programmers and IT specialists fall within their ‘usual course of business’, not vehicle drivers. Nevertheless, to the customer, it seems like Uber provides transportation services.

Viola provides musical performance services. JNP will claim they are not a musical performance company, but a wedding & event planning agency. Nevertheless, JNP offers wedding music and entertainment right on their website (“String quartets, variety bands, experienced and diverse Disc Jockeys and MC’s, specialty lighting and photography packages, and more… Joel Nelson Productions has the right plan at the right price to make your wedding dreams a reality.“)

The person is customarily engaged in an independently established trade of the same nature

C

Umar mostly drives for Lyft. He only gives Uber rides on weekends.

Viola has a full-time job as an accountant. She only does violin gigs on some weekends. She only gigs through JNP.


Who is an employee and who is a contractor? Seems like Viola would be classified as an employee, because doesn’t fulfill requirement ‘C’. All three of these stipulations are not very concrete, open to many interpretations and arguments, and thus not a very good law.

In my humble opinion, good laws are clear, concise, and concrete (the 3 Cs). So, instead of the ABCs, here’s my attempt to draft a C3 law with similar intent: Someone shall be classified as an employee (not an independent contractor) if they…

C1: have performed services for company C over W weeks


C2: work for company C more than H hours per week

C3: perform this work as their primary source of income