December 2, 2020
By Timothy Sandefur
California’s job-killing AB5 sparked a statewide protest last year by freelance workers and independent contractors who protested that they, rather than officials in Sacramento, should have the right to decide what kind of jobs they take. And a lawsuit, brought by our friends at the Pacific Legal Foundation, targeted one of the law’s more obvious flaws: its restriction on the number of articles that freelance writers could publish. By limiting authors to 35 contributions, and imposing other restrictions on what journalists could do, the law violated the First Amendment.
We filed a brief in that case—but before the court could rule, lawmakers revised the law, adopting the new AB2257, which imposes a whole new set of sometimes bewilderingly complicated restrictions on workers throughout California. Among other things, the new law eliminates the 35-article limit for writers—but it keeps in place several other restrictions on journalists, as well as performers and musicians. So in a new brief filed yesterday, we argue that the new law is just as unconstitutional as the old one. It’s just more complicated.
Under current California law, whether a person is allowed to work as an independent contractor, or whether the person must be regarded as an employee, is decided by applying one of two separate legal theories, called the Borello test and the Dynamex test. Those are the names of state court rulings that made no attempt at drawing a clear line between employees and independent contractors, but only set out factors to be considered in making that decision. AB2257 then classifies different occupations into these two categories, with the result that two separate sets of vague and convoluted legal theories have to be applied to each situation in order to decide whether the person can be an independent contractor or not.
Consider how the law treats “performance artists.” Under AB2257, the employment status of a person who “performs material that is [his] original work” is determined according to the complicated Borello test instead of the slightly less complicated Dynamex test, as long as his performances are “creative in character” and “depend primarily on [his own] invention, imagination, or talent.” That means that, for example, Star Trek actor Patrick Stewart, who recently revived his popular stage show that consists of a dramatic reading of Charles Dickens’s A Christmas Carol, would not qualify—since A Christmas Carol is not his own original material—and therefore would probably not be allowed to work as an independent contractor. But his fellow Star Trek actor, William Shatner—who performs a one-man show called “Shatner’s World”—would, because he wrote the script for that show himself.
Another provision of the law regulates how musicians are classified. In 1998, Eric Clapton performed a series of concerts to promote his album Pilgrim. The concerts were unusual in that for part of each performance, Clapton was backed by a 20-piece orchestra that traveled with him. Under AB2257, Clapton himself would be subject to the more lenient Borello test, because he was engaged in “single-event live performance[s],” was the “event headliner,” and the concerts drew more than 1,800 attendees. But a violinist in the orchestra would be treated differently—would be subjected to the Dynamex test instead—because she was performing in a “symphony orchestra,” and that’s a different category. (Of course, the law does not define “symphony orchestra,” so it’s possible a court might rule that this was just a chamber orchestra, and therefore subject to a different test.)
These examples highlight not only the silly and trivial nature of AB2257’s hyper-complicated employment law, but the foolhardiness of government control over the economy generally. Economies are not machines that can be controlled and turned off or on—they’re more like ecosystems, constantly changing, growing, or dying. The idea that a single entity—let alone a government bureaucracy—could possibly regulate and control every single occupation in the state is delusional, not to mention morally offensive, given that the decisions over what kinds of jobs to take should be left to the people doing those jobs.
More, these classifications violate the First Amendment, every bit as much as the original AB5 did. For government to treat performers differently based on the content of their performance, or to classify musicians differently based on whether they are the “headliner” or performing in the right kind of orchestra or not, necessarily infringes on freedom of expression and violates fundamental constitutional rights.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.