In the employment law field, everyone’s talking about AB 5, the new law that’s supposed to address all the confusion about who is and who isn’t an independent contractor.
You remember how, in April 2018, the California Supreme Court issued its ruling in the Dynamex case. That lawsuit concerned a very short-term worker for Dynamex, one of the gig economy businesses. He was treated as an independent contractor, which resulted in more money in his paycheck when he earned anything. That’s because there is no withholding of taxes, so his net pay was also his gross pay.
The downside was that he lost out on numerous benefits and protections that employees enjoy. Things like a minimum wage, overtime pay, sick leave, worker’s compensation, and unemployment insurance, just to name a few.
The world of independent contractors prior to the Dynamex decision was murky, to say the least. The Legislature had failed to pass any law detailing how to determine if one is an employee or an independent contractor.
The Supreme Court had decided a case decades ago (Borello, as it’s known) that listed numerous factors for courts to use to determine a worker’s status. The problems were both the sheer number of factors and the reluctance of the high court to say any one of them was dispositive. Consequently, there were lower court decisions that seemed to reach different conclusions and provided little guidance to businesses and workers in ferreting out who was an independent contractor.
Along comes the Dynamex decision that truly simplifies the question as to whether a worker is an employee. The Court prescribed a straightforward “ABC” test to answer this query. Essentially: Does the worker perform work that is outside the usual course of the hiring entity’s business? If the answer is no, then the worker is likely an employee. Or, as the court said, “when a retail store hires an outside plumber to repair a leak in a bathroom on its premises,” then that is an independent contractor situation. But, “when a clothing manufacturing company hires work-at-home seamstresses to make dresses from cloth and patterns supplied by the company,” that will be an employment situation.
Even though the logic and ruling were quite clear, there remained open issues. For instance, was the ruling retroactive? Subsequent to the Dynamex ruling, at least one court ruled that Dynamex was not limited only to prospective cases. But that decision came from a federal court, so was not binding on state courts on state law issues.
Also, the Supreme Court approached the independent contractor only from the point of view of a specific wage order. Did it apply to other wage orders? What about workers compensation or unemployment insurance cases? How about wrongful termination or harassment cases? All unresolved questions.
Unresolved until earlier in September when Gov. Gavin Newsom signed AB 5 into law. Now, however, rather than the clarity of the Supreme Court decision, we have a multi-page law that goes into much more detail about who is not impacted by AB 5 than who is.
Dozens of professions are exempted from the law, including 1) a person or organization licensed by the Department of Insurance; 2) a physician, surgeon, dentist, podiatrist, psychologist or veterinarian; 3) a lawyer, architect, engineer, private investigator or accountant; 4) a securities broker-dealer or investment adviser or their agents and representatives; and 5) a direct-sales salesperson.
But the exemptions don’t stop there. My future columns will delve into those.
Carl Kanowsky of Kanowsky & Associates is an attorney in the Santa Clarita Valley. He may be reached by email at cjk@kanowskylaw.com. Nothing contained herein shall be or is intended to be construed as providing legal advice.
COMMENT POLICY: We welcome comments from individuals and businesses. All comments are moderated. Comments are subject to rejection if they are vulgar, combative, or in poor taste.
REAL NAMES ONLY: All posters must use their real individual or business name. This applies equally to Twitter account holders who use a nickname.
All opinions and ideas are welcome. Factually inaccurate, libelous, defamatory, profane or hateful statements are not.
Your words must be your own. All commentary is subject to editing for legibility. There is no length limit, but the shorter,
the better the odds of people reading it. "Local" SCV-related topics are preferred. Send commentary to: LETTERS (at) SCVNEWS.COM. Author's full name, community name, phone number and e-mail address are required. Phone numbers and e-mail addresses are not published except at author's request. Acknowledgment of submission does not guarantee publication.
The city of Santa Clarita continues to be a forward-thinking city, providing residents with the resources and amenities that make Santa Clarita a great place to raise our families.
Every school shooting is a tragedy. Beyond their common elements, however, there are differences, and in the case of Santa Clarita, collateral suffering that may be less obvious — and a lot more difficult for many to accept.
The real measure of our impact is our ability to deliver on the promise of opportunity – which can be seen in the hundreds of thousands of lives changed because students could access higher education at College of the Canyons.
Due to the National Weather Service’s forecast for wind chill temperatures, the Los Angeles County Health Officer on Friday called a cold weather alert for the Antelope Valley and LA County mountain areas.
Every Thursday in Stevenson Ranch, one can see a classroom full of Pico Elementary special education children eagerly dancing their way down the street or gleefully visiting a grocery store en masse.
Valencia-based nonprofit organization SNAP Sports is proud to announce a new partnership with Afterburn Fitness in Valencia to help train special-needs athletes for hockey festival competition.
The city of Santa Clarita and the Santa Clarita Valley Sheriff’s Station are teaming up for the latest iteration of the "Heads Up" traffic safety campaign, just in time for the year-end holidays.
The second of two robbery suspects who initially eluded deputies during containment of a Canyon Country neighborhood Tuesday afternoon has been arrested, sheriff’s officials said.
Castaic Middle School KLAWS clubs in partnership with West Ranch High School and DFYinSCV will carol to the adoptable pets at the Castaic Animal Care & Control Center on Thursday, December 19, from 4 p.m. to 5 p.m.
Libbie McMahan scored half the points for her team in Saugus High School girls basketball’s 56-51 tournament win over Glendora at Sierra Canyon on Thursday night.
The Golden Valley High School Grizzly Band, Jazz Band and Color Guard have set a benefit event for Saugus High School at Tomato Joe's Pizza & Taps on Wednesday, December 11 from 11 a.m. to 9 p.m.
For each of the past six years, developers planning to build a senior condo complex near Towsley Canyon on The Old Road have asked regional planners for more time to keep the project alive, and on Tuesday they’ll ask again.
A special meeting of the Engineering & Operations Committee is scheduled to meet on Monday, Dec. 9, at 5:30 p.m. at Summit Circle, located at 26521 Summit Circle, Santa Clarita, in the Training Room.
Because of the recent rainfall, Los Angeles County Health Officer, Muntu Davis, MD, MPH, is cautioning residents who are planning to visit Los Angeles County beaches to avoid swimming, surfing, and playing in ocean waters around discharging storm drains, creeks, and rivers. Bacteria, chemicals, debris, trash, and other public health hazards from city streets and mountain areas are likely to contaminate ocean waters at and around these outlets after a rainfall.
OAKLAND — Insurance Commissioner Ricardo Lara issued a mandatory one-year moratorium Thursday on insurance companies non-renewing policyholders - helping at least 800,000 homes in wildfire disaster areas in Northern and Southern California.
In what has become a Newhall tradition, Faith Community Church will welcome the neighborhood to celebrate Christmas with its 14th annual “Festividad for Christ” event.
The Santa Clarita Valley Youth Orchestra (SCVYO) invites all young musicians to attend the next “Visiting Artists Program” workshop that will be taking place Saturday, Dec. 7, from 10:00 a.m. – 12:30 p.m. in Pico Canyon Hall at College of the Canyons.
As the community continues to process the Saugus High School tragedy and find comfort in one another, the Santa Clarita Public Library has come together with Homes4Families to offer Santa Clarita teens and tweens affected by the shooting a healing art program, titled “The Heart of Feeling: Emotions Hidden Inside.”
The Newhall residential community is about to grow with the addition of nearly 100 condominiums after the Santa Clarita Planning Commission approved their construction on Tuesday.
REAL NAMES ONLY: All posters must use their real individual or business name. This applies equally to Twitter account holders who use a nickname.
0 Comments
You can be the first one to leave a comment.