AB 71: Employment standards: independent contractors and employees

The Dynamex decision established a three-part test for determining whether a worker is considered an independent contractor.  Under this test, a worker is deemed an independent contractor if it is established that 1) the worker is free from control and direction of the hirer in connection with the performance of their work, 2) the worker performs outside the usual course of the employer’s business, 3) the worker is engaged in an independently established trade or occupation.  The passage of AB 5 this year codified this test into statute, effectively requiring employers to treat their workers as employees rather than continue to misclassify them as independent contractors.

In response to AB 5, Assemblywoman Melissa Melendez authored Assembly Bill 71. AFSCME strongly opposed this bill which would have instead required that the determination for a worker to be deemed an independent contractor be based on a separate multifactor test.  This new multi-factor test would establish that an independent contractor status is dependent on factors such as whether the person to whom the service is rendered to has the right to control the manner and means of accomplishing the result desired, and whether or not the parties believe they are creating the relationship of employer-employee, among others.  This new standard for determining whether a worker is an independent contractor is confusing and only adds ambiguity, making it easier for an employer to classify an employee as an independent contractor and avoid labor standards that protect employees. 

AFSCME opposed this bill because it diminishes the very protections that our current law offers and threatens the rights of workers that AFSCME has long fought for. Workers have been misclassified as independent contractors and, as a result, have been forced to subsist on substandard pay and benefits while conducting the same work an employee would do. Keeping them from obtaining their rights as workers goes against everything our union stands for.

This bill became a two-year bill without coming to a vote in the Assembly Labor and Employment Committee. It may be acted upon in January of 2020.