AB 5 is a bill passed by the California legislature and, in the account Bob Zadek gives his audience, the law in California. Zadek describes it as a statute that declares workers to be employees rather than independent contractors, and he frames the fight over it as national rather than Californian, noting that New York and New Jersey and other states were considering similar legislation. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
What the law does
Zadek’s summary is that AB 5 says drivers for Uber and Lyft, and hundreds of other activities, are not independent contractors but employees. He describes independent contractors as workers who are paid a fee, pay their own Social Security taxes, and do not contribute to unemployment insurance or Social Security funds, and who in exchange set their own hours — two hours a week or 200. Under the statute, he says, the California legislature decides by statute that such a worker is an employee, must work a 40-hour week, and receives unemployment insurance and Social Security benefits, so that the flexibility of the business model fails. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Kim Kavin, a working journalist, freelance writer, co-founder of Fight for Freelancers New Jersey and a member of the American Society of Journalists and Authors, says the issue came to light in California with AB 5 and that media coverage focused on Uber and Lyft drivers. What has been found since the law went into effect in California on January 1st, she says, is that the way it is written affects people in more than 300 professions identified so far — courtroom interpreters, respiratory therapists, and a pharmacist with a PhD thrown out of work. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Effects described by guests
Kavin’s account of the law’s reach is the article’s most concrete catalogue: more than 300 professions, courtroom interpreters, respiratory therapists, a pharmacist with a PhD. She also cites an article by a member of her coalition, Elaine Pofeldt, whose headline she gives as “California’s AB 5 Leaves Women Business Owners Reeling.” That article, she says, discussed women as the fastest-growing group of business owners in the country, with the number of women-owned businesses up over 20% from 2014 to 2019 compared to 9% for all other businesses. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Kavin also reports that the head of the California Black Chamber of Commerce and the president and CEO of the Los Angeles Urban League came out attacking the legislation and saying it is destroying the lives of black business owners. Zadek, for his part, says he found a collection of black business owners and black entrepreneurs, and journals appealing to black entrepreneurship, almost universally opposed, and he describes the law as denying minorities the first rung on the ladder of entrepreneurial independence. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
The federal extension
Zadek raises a bill in Congress he calls the PRO Act, and Kavin supplies the expansion: “Protecting the Right to Organize.” Zadek observes that organize equals unions. He also states that Joe Biden has as a specific element in his platform that he would support AB 5 on a national level. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
Kavin says the pandemic made clear to Americans of all political persuasions what happens when the government shuts down your ability to work, and that the legislation does the same thing. She describes walking into rooms with lawmakers, including Democrats who had voted in favor of the legislation because it already passed the House, and finding that they listen and seem to understand there is a problem when the conversation turns to how the legislation is written. What they are up against, she says, is the head of the AFL-CIO saying that if you vote no, we are not going to give you a dollar or any campaign help in this election cycle. She says the legislation can be fixed and that fixes have been proposed. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020)
In other episodes
Robert C. Wright, described by Zadek as a prolific writer and professor, refers listeners to his page at AIER, where he says he has written articles on California’s AB 5 and the travesty that it is. The Decline of American Independence (2020)
Williamson M. Evers, discussing California’s ethnic studies model curriculum, calls AB 5 the anti-gig worker law, anti-Lyft, anti-Uber, anti-Postmates, anti-DoorDash and anti-Uber Eats, and describes the companies as a platform where consumer meets provider. He compares them to the immigrant labor contractors of the post-Civil War South, who sought out black workers, provided a railroad ticket or carting money to get them to a new job, and took a fee from the company — a platform, he says, similar to the electronic platforms that help Uber drivers meet Uber customers. The Jim Crow laws outlawed these labor contractors, and Evers calls it the same mentality: stop the productive middleman in order to keep racial privilege in place. California’s Ethnic Studies Curriculum vs. Trump’s Patriotic Education (2020)
Kevin Kiley calls AB 5 one of the most corrupt laws ever passed in the United States and says it has been described as an enormous payout to the unions, the massive union conglomerates that put Newsom in power. With a single stroke of his pen, Kiley says, Newsom deprived tens of thousands of people in California of their ability to earn a livelihood. The bill banned, in most cases, being an independent contractor or being your own boss. The most common example, now exempted out by a ballot initiative, is Uber and Lyft drivers, but Kiley says it ensnared literally hundreds of other professions: interpreters and translators, tutors, mall Santas and birthday clowns. The Case for Recalling Gavin Newsom (2021)
Kiley describes a movement that sprang up even before COVID against AB 5 to repeal the law, and Newsom’s refusal even to acknowledge the victims of the law. When COVID-19 came and there was a stay-at-home order, he says, the law was more damaging because many jobs no longer allowed or legal in California were precisely the freelancing-type things you could do from home — independent writing, photography, recipe writing — and healthcare professionals such as nurse practitioners, nurse anesthetists and medical interpreters were kept off the front lines. He says he asked the EDD to stop conducting audits of small businesses during the COVID shutdown looking for AB 5 violations, and it refused. He says that when the federal government provided unemployment assistance for freelancers under the CARES Act, Newsom and the EDD tried to shoehorn them into the regular unemployment system so that independent contractors would have to give the names of their business partners, whom the state could then audit and fine, and that many independent contractors had to wait months longer than necessary for benefits. He also says that with California facing a budget surplus of around $50 billion, Newsom devoted $21 million as a line item to enforce AB 5 through three different state agencies. The Case for Recalling Gavin Newsom (2021)
Across episodes
The topic recurs across four episodes, and the treatment shifts with the speaker. In July 2020 Kavin and Zadek present AB 5 as a state law already spreading to New York and New Jersey and about to go national through the PRO Act and Biden’s platform, with the emphasis on the number of professions affected and on women and minority entrepreneurs. Terrible New Worker “Protection” Laws Threaten the Gig Economy (2020) In August 2020 Wright mentions AB 5 only in passing, as one of the subjects he has written about. The Decline of American Independence (2020) In October 2020 Evers places it in a historical analogy to post-Civil War labor contractors and Jim Crow. California’s Ethnic Studies Curriculum vs. Trump’s Patriotic Education (2020) By March 2021 Kiley, speaking about the recall, treats it as an accomplished fact of California governance, adds the ballot initiative exempting Uber and Lyft drivers, and supplies figures — $50 billion surplus, $21 million for enforcement — that appear in no earlier episode. The Case for Recalling Gavin Newsom (2021) The excerpts show the argument moving from prediction of national adoption to retrospective accounting of enforcement, but they do not show any guest defending the law.
What the sources do not cover
The excerpts do not give AB 5’s legislative number, its author, its text, or the judicial history Zadek says is not relevant to the show. They do not state what the ballot initiative exempting Uber and Lyft drivers was called, when it passed, or what it provided. The PRO Act is described only through its acronym and Kavin’s expansion of it, with no account of its provisions or its fate. No excerpt presents a defender of AB 5 in his or her own words; the AFL-CIO position is reported by Kavin rather than spoken by a union representative.