May 26, 2020
Oakland, Calif.AB-5 is a devastating piece of legislation. It forces freelancers and gig workers into an untenable position: they either must become employees or face having their paid work drastically reducedor cut altogether. These flexible positions are needed now more than ever.
So say constitutional attorneys Krystal Swendsboe and Frank Changand authors of a new amicus brief filed by the Independent Institute at the U.S. Court of Appeals for the Ninth Circuit in the American Society of Journalists and Authors, Inc., et al. v. Xavier Becerra case.
This important case challenges the violation of free speech rights and seeks to alleviate the severe economic harm caused by Assembly Bill 5 (AB-5). And relief is neededparticularly now during this time of pandemic.
The appellantsfreelance writers, editors, video- and photo-journalistshave shown that AB-5 infringes their free speech rights. And the Institutes brief also demonstrates that AB-5 is an irrational law that draws arbitrary and discriminatory lines through every industry. Simply put, AB-5 cannot withstand constitutional scrutiny at any level.
Our constitutional system relies on courts to uphold the Constitution, say Swendsboe and Chang, and that includes meaningful scrutiny of state legislation. The district court failed to do so here, and the Ninth Circuit must correct this misapplication of the law.
AB-5 was passed in Sept. 2019 and originally sought to end the gig economy by recategorizing most freelance 1099-contractors as W-2 full time employees. An organization of businesses in the gig economy qualified a petition today to repeal AB-5.
Massachusetts also adopted a similar but less strict version of similar legislation. In addition, New York, New Jersey, Illinois, and other blue states across the U.S. have expressed interest in adopting AB-5type measures, and former Vice President Joe Biden has endorsed AB-5type controls.
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