Aug 17, 2018      News      

Independent contractors urge state legislators to pause recent Dynamex court decision

A single mother with an injury that requires ongoing medical attention, Bonita Smith struggled to balance her work schedule, her doctor appointments and her son’s school schedule and extracurricular activities. Seeking flexibility and autonomy over her day-to-day routine, Smith left her job as a supervisor in a storage company and opted to begin driving for Uber as an independent contractor.

“Because I no longer have [my job] as a barrier or obstacle– like I had to either choose my son or work or my medical appointments or work– it gives me so much more peace of mind,” Smith said. “And it makes it so much easier for me to literally dictate my day. I go to physical therapy twice a week […] if I were working in a traditional job, there is no way I could meet my obligation to go to the doctor, get medical treatment and deal with my son.”

Approximately three years after making her career change, Smith has joined a movement alongside the I’m Independent Coalition and the California Chamber of Commerce opposing the recent Dynamex Operations West, Inc. v. Superior Court of Los Angeles County decision. Smith and other critics argue the April ruling puts the livelihoods of independent contractors and freelancers at risk.

At a press conference and rally that took place on the steps of the California State Capitol Wednesday, nearly 200 people called on state legislators to take action to stop or pause the Dynamex decision before the Aug. 31 legislative deadline.

The Dynamex Operations West, Inc. v. Superior Court of Los Angeles County ruled that Dynamex had incorrectly categorized its truck drivers as independent contractors, rather than employees. The decision adopted what is commonly referred to as the ABC test for determining whether workers ought to be categorized as employees or independent contractors.

According to the court decision, the newly adopted ABC test presumes that all workers are employees unless the hiring entity meets the following three requirements for categorizing workers as independent contractors: “(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.”

Opponents of the ruling, like the I’m Independent Coalition, argue that the ABC test is a “one-size fits all test” that will compromise a wide range of complex and rapidly changing industries.

“There are nearly two million Californians who work as independent contractors in many industries that range from healthcare, technology, construction, transportation, beauty, finance, insurance, entertainments and many more,” according to an I’m Independent Coalition press release.

Laura Curtis, policy advocate for the California Chamber of Commerce, said there is a wide range of industries that may be impacted by the decision and the ABC test.

“The B prong [of the ABC test] is the real kicker, if you’re in the same line of business,” Curtis said. “That leads to salons and hairdressers that run a chair at a salon; it leads to transportation; it leads to dog-walkers […] the same with music schools. We’re looking at musicians who play their own gigs throughout the year, but then when they’re not off traveling playing gigs, they want to teach music classes through school programs. So, the B factor is the one that’s really concerning.”

Curtis said the primary goal of the opposition movement is to get the State Legislature involved with the decision-making process in this case in order to allow every industry an opportunity to participate in the discussion.

“We’re simply requesting that the legislature would pause the implementation of the Dynamex case and give us some time to have some thoughtful deliberation on this,” Curtis said. “Just to have this go through the legislative process, have it be discussed in policy hearings and have all the industries be able to be represented and heard rather than have it come down through the system in a way that would only allow for certain industries to be able to express their concerns […] without some sort of involvement by the legislature, we’re just going to see a lot of businesses that are going to be collateral damage of this.”

Truck broker Marco Silva, chief financial officer of Silva Sons Transportation Inc., called his independent contracting experience in his family business a means to achieving the American dream at Wednesday’s press conference.

“As first generation Americans, up until now, [my brother and I] have been able to live the American dream,” Silva said. “However, through California’s Supreme Court ruling back in April, the American dream of being able to build a business and shape your future has been shattered. […] This ruling is overreaching, as it threatens our future and monopolizes the construction and transportation industries by allowing those with the deepest pockets to control all the work. […] As independent contractors, we have the liberty to make our own schedules, choose who we want to work with and how we want to execute our work […] We ask our legislative representatives to please take action this month and suspend the [California] Supreme Court’s ruling before we become victims of it.”

Silva said he wants to see a two-year suspension placed on the ruling. He and his brother had a meeting scheduled with their state representative, Assemblymember Luz Rivas (D–Arleta), Thursday in addition to several meetings with other representatives and staff members that he and other advocates participated in after the rally.

Smith and Sylva also joined President and CEO of the Long Beach Area Chamber of Commerce Randy Gordon for a press conference last week, where a major issue discussed was the lack of legislative approval or process in the Dynamex decision.

“We, in Long Beach, are very concerned about the Dynamex decision,” Gordon said in a press release following the conference. “We are asking State legislators to take action now in the next three weeks to suspend the application of the decision. This will provide the time to determine the best protections for workers while protecting their choice to work as a freelancer or independent contractor. No action by legislators will severely restrict work opportunities for people in Long Beach and across the state and dramatically impact our economy.”

Representative of Signal Hill, most of Long Beach and several other cities in Los Angeles County, State Senator Ricardo Lara authored Senate Bill 1402 this year. The measure, though separate from the Dynamex court case, addresses concerns about misclassification of independent contractors, specifically that of truck drivers at the Ports of Long Beach and LA.

“I have seen how misclassification of port truck drivers as independent contractors has driven down wages and decimated working families, and by any standard the exploitation of truck drivers at the ports of Long Beach and Los Angeles violates our laws and is a disgrace for our state,” Lara said in a statement. “More than one million Californians work as independent contractors without protections of health care, retirement and paid vacation and sick days, and I agree with legislative leaders that this issue is too important to leave to the final weeks of a legislative session.”

The senator’s communications director, Michael Soller, confirmed Wednesday via email that Lara supports the decision in the Dynamex court case.

Assemblymember Patrick O’Donnell, who also represents Signal Hill and most of Long Beach, declined to comment on the matter at this time, but Assembly Speaker Anthony Rendon said in an interview with Capitol Public Radio on Aug. 8 that the legislature will not act on the issue this year.

“Ultimately, this decision is about the future of the way work looks,” Rendon said. “And that requires us to be thoughtful and deliberate. And there’s no way we can be thoughtful and deliberate in three weeks.”

Read the full article from the Star Tribune here.