Fantastic day of action in Sacramento at the Rally to Repeal AB 5​

It was a fantastic day of action in Sacramento at the Rally to Repeal AB 5​, hosted by Assemblyman Kevin Kiley​ and Melissa Melendez​. My bud and Faithfully Live​ colleague Jeff Salado​ were there to hear the compelling speakers at the event -- chronicling many groups of indy contractor professional careers -- including musicians -- devastated by the new law here in CA. https://tinyurl.com/qrwa5oq

It was important for us to make the drive to Sac not only because of the rally, but to tag team and meet with our lawmakers -- Assemblymembers and State Senators -- to express our thoughts and stories about AB5's impact on musicians (and writers, like myself). When it comes to constituent lobbying, it's just as powerful to meet with the chiefs of staff of the lawmakers, who are incredibly knowledgeable and have their ears to the ground on pending legislation, and they are often more accessible. We met with and delivered detailed formal letters about AB5 from a personal perspective to:

* State Sen. Anna Caballero (D-12) and her Chief of Staff Aracely Campa - YES on AB5;
* Chief of Staff for State Sen. Cathleen Galgiani (D-05), Bob Alvarez - YES on AB5;
* Chief of Staff for Assemblyman Heath Flora (R-12) - NO on AB5;
* Staffer for Assemblyman Adam Gray (D-21) - NO on AB5.

The conversations were illuminating, particularly with those who initially voted YES on AB5 -- and how ALL want major changes given the colossal, career-threatening problems it has created for independent contractors professionals. I'll probably do a writeup on my blog or for Freelancers Against AB5​. One of the members of the group, Peter Kalivas​, spoke at the event: https://youtu.be/KXi8mJYD9IM



All have heard from many, many constituents about repealing or amending AB5 so keep it up with the personal stories (NOTE TO MUSICIANS in District 5 -- Sen. Galgiani's rep had NOT heard from music professionals before Jeff and I walked through the door today).

There are quite a few bills submitted that will be evaluated by the end of February -- including repeal, additional exemptions, and a small business exemption -- those and a number of others will be in the mix.  We plan to do follow-up meetings with the lawmakers as bills move forward to get a clear sense of their positions on the options to deal with AB5.

All the conversations were polite and engaging, and they welcome you to contact and meet with them, either in their Sac or local offices. They really do appreciate constituents who take the time to do their homework on the issues. They need your input to stop this insanity.

How to find your lawmaker to write/call/visit with: http://findyourrep.legislature.ca.gov

NOTE: Contractor John Vogel (https://twitter.com/Vogel4Assembly) is running against AB5's sponsor, Assemblymember Lorena Gonzalez (D-80), and promises to fight to repeal AB5.

Learn more at my pad: http://www.pamspaulding.net/

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Good reads...  

• See Big Labor, the AFL-CIO, use a sockpuppet Twitter account to front for pro-AB5 "gig workers"
• California's AB5 - wreaking havoc for independent contractors 
• Independent contractors both helped and hurt by CA's AB5 (Pam)
• AB 5 - CA’s New Independent Contracting Rules (exemptions)
• Why misclassification is a problem
• Will This California Law End Freelance Work?
• What You Need to Know About the AB 5 “Business-to-Business” Exemption
• How a New Law Will Change California Show Biz
• Vox Media cuts hundreds of freelance journalists as AB 5 changes loom 
• Pam on Michelangelo Signorile Show re: AB5 (Dec 30). 
• What is independent contractor versus employee (State of CA FAQ)
• Employment Determination Worksheet (State of CA PDF checklist test)
• How to find your lawmaker to write/call: http://findyourrep.legislature.ca.gov

AB5: See the stories of independent contractor lives shattered by the CA law

The harm of AB5 on independent contractors is not an abstraction or a political football. One of the largest grassroots Facebook groups where discussion about the impact of the law is Freelancers Against AB5 -- a clearinghouse of education, information, and strategy for citizen activism of the self-employed harmed by the law. Moderator Karen Anderson took it upon herself to gather these emotion-filled stories of shattered careers - now up to 113 professions -- adversely affected by the law and place them into an accessible database: https://rolls.bublup.com/Anderson/AB5-Personal-Stories:

Hello Members. Here is our archives of personal stories documenting the negative impacts of AB5 categorized by profession. This is a continuing work in progress that I can add to or edit at anytime, so keep your stories coming! There are 113 categories of professions thus far that comprise hundreds of stories from our members. (Photographers, I need your stories.) Please share on social media and be sure to send this link to your representatives in the state legislature on Facebook, Twitter and email.

AB5 harms hundreds of thousands of independent contractors that rely on freedom to determine their rates of pay, when and how they work. When AB5 was debated, select professions were invited to petition, er, beg for exemptions, while others with the same functional business needs were not. That in itself is discriminatory. Now we see independent contractors’ careers halted in their tracks. Notably, even clients of professions exempted from the law are bailing, canceling contracts because of the legal uncertainty and potential liabilities.

SB459 has been on the books since 2012 and it already addresses misclassification in fields where it is rampantly abusive. I do not understand why AB5 was necessary to implement in such a damaging way to so many segments of the economy. AB5 at the very least should be amended to include an exemption for performing artists and no limited number of articles for writers or exemption for small business; however, in the larger scheme of things, I have come to believe only full repeal is a solution. We cannot be patient for months for a fix or to find a way to “adjust” when all of these taxpayers all have bills and must keep a roof over their heads.

NOTE: There is a rally and citizen lobby day at the Capitol in Sacramento on Tuesday, January 28 at 10 AM, sponsored by Assemblyman Kevin Kiley and Melissa Melendez, both Republicans, btw, though this is not a partisan issue. https://www.facebook.com/events/2577638375849505/

Since shuttering my national progressive political blog, Pam's House Blend, back in 2013, AB5 is the first topic to re-activate me because it runs at the foundation of what I have done as a working professional -- I've been a small business owner, an employee of a large company, and a freelance reporter and project manager as an independent contractor. I’m a Democrat from North Carolina that moved to CA in 2017. Little did I realize that too many lawmakers here have taken leave of their senses, only proving a supermajority of either party can result in bad lawmaking and a heavy hand. The Democrats at the state and national level need to understand this is no way to handle labor in an economy so diverse and evolving in its make up. A sledgehammer approach is not healthy or resembles anything remotely like common sense.

As my blogosphere colleague Markos Moulitsas at Daily Kos (no Red State or Town Hall, btw) made clear in his post, "Democrats across the country seek to make California's mistake, destroying careers of freelancers," legislation impacting people’s ability to live should never be made in an arbitrary manner as AB5 was, and current DNC Chair Tom Perez, when he was Barack Obama’s labor secretary, aggressively fined bad actors under existing fed law.

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How to find your lawmaker to write/call: http://findyourrep.legislature.ca.gov

How they voted (and see how much money they received from Big Labor):
Sen Vote: https://legiscan.com/CA/rollcall/AB5/id/890316
Assm Vote: https://legiscan.com/CA/rollcall/AB5/id/890318

Just a reminder, folks. There is a federal labor bill that underscores the very ABC test that is decimating independent contractors here at the state level with AB5. It's H.R. 2474, and take a look and see who is co-sponsoring this bill.

https://www.congress.gov/bill/116th-congress/house-bill/2474/text 

Side note: Today I received a campaign call for my Congressman, Jim Costa, and said that I would not support his re-election if he supported HR 2474 as it stands affecting independent contractors. The polite caller took my information because at this juncture, he's not a co-sponsor.
So be ready to make your case now that the campaign calls are heating up.

How to find your lawmaker in DC to write/call about this legislation: https://www.govtrack.us/congress/members

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Good reads...  

• See Big Labor, the AFL-CIO, use a sockpuppet Twitter account to front for pro-AB5 "gig workers"
  
• California's AB5 - wreaking havoc for independent contractors 
• Independent contractors both helped and hurt by CA's AB5 (Pam)
• AB 5 - CA’s New Independent Contracting Rules (exemptions)
• Why misclassification is a problem
• Will This California Law End Freelance Work?
• What You Need to Know About the AB 5 “Business-to-Business” Exemption
• How a New Law Will Change California Show Biz
• Vox Media cuts hundreds of freelance journalists as AB 5 changes loom 
• Pam on Michelangelo Signorile Show re: AB5 (Dec 30). 
• What is independent contractor versus employee (State of CA FAQ)
• Employment Determination Worksheet (State of CA PDF checklist test)
• How to find your lawmaker to write/call: http://findyourrep.legislature.ca.gov

Fighting #AB5 - it may eventually lose in court, but how many careers will be destroyed in the interim?

AB5, the new law now in place here in California as of January 1, ostensibly passed to "protect" workers exploited by companies misclassifying them as independent contractors, has wreaked so much havoc that careers are being decimated -- contracts lost, potential gigs eliminated -- all because of a lack of understanding by lawmakers in support of it about the wide spectrum of the ways the "gig economy" works.

The one thing it is NOT is a partisan issue, though defenders of AB5 try to paint hard working professionals in opposition to AB5 as some sort of right-wing nutter base trying to flip the state Red. People and businesses across every demographic are hurt by a law passed by, yes, Democrats, but it's harming what is a natural target voter base as well. Markos Moulitsas at Daily Kos, no Red State or Town Hall, btw, made clear in his post, "Democrats across the country seek to make California's mistake, destroying careers of freelancers," that this now-national issue (see House Bill 2474) is an albatross around the necks of this state government and other states proposing AB5-clone bills.

Note that existing state law in California, and federal law, already punishes misclassification of employees as freelancers, when they should be employees. None other than DNC Chair Tom Perez, when he was Barack Obama’s labor secretary, aggressively fined bad actors. Meanwhile, Democrats across the country now are playing copycat to a law that its very own author, Assemblywoman Lorena Gonzales, admits was arbitrary. Literally.  "Was it a little arbitrary?” said Assemblywoman Gonzalez. “Yeah. Writing bills with numbers like that are a little bit arbitrary.”  

Legislation impacting people’s ability to live should never be arbitrary. 

One of the largest grassroots Facebook groups where discussion about the impact of the law is Freelancers Against AB5. It serves as a clearinghouse of education, information, and strategy for citizen activism of the self-employed harmed by the law. One member, Peter Kalivas, has spent a good time digging and researching how this misguided law will not stand legal muster and muses aloud why this bill exists at all. From his post (this group requires subscription/admission, I added ref links):

Everything I write is based on research I have done, and I could provide documentation to support my statements. 

In the opening text of the AB5 Bill/Law, the Dynamex court case is referred to as its inspiring incident. Therefore, I think it is important to review that case for context before I proceed with my feedback about AB5 - because it is relevant. 

The Dynamex court case decision was based on the complete opposite of the AB5 construct. Between 2004-2005, Dynamex de-classified employees WITH benefits into independent contractors with NO benefits, as an effort to save money. This case was brought by a small group of drivers who after 3 months of transition realized they preferred being employees, and filed a misclassification lawsuit. 

I have access to testimonials from other Dynamex workers who ultimately appreciated having the new option to accept and refuse work; due to the new flexibility independent contracting gave them. Ultimately, the court decision took away all Dynamex worker’s right to choose which employment situation they preferred resulting in the construct of the ABC test to more specifically determine what an employee was despite that already being defined at the federal level.
The Dynamex couriers who appreciated and preferred the transition into an independent contract have since spoken out against those who brought on the original court case. 

So the point of AB5 as a response to the Dynamex case is a very challenging rationale to resolve that elects for some less clear reason to take away the rightful and legal option for persons to choose their own working conditions that best suited THEIR needs. As a failed attempt to course correct the misclassification of workers, AB5 has confused what an “employee” is while separating U.S. citizens from their right to choose the conditions of how they choose to work under legal federal codes and allowances. 

So now there are multiple sources applied at the state level that have various definitions of what an “employee” is and what self-employed is. It could be presumed that our FEDERAL government’s definitions hold the highest authority over the State. But AB5 does not follow that rationale. 

The IRS was formed in 1862 and at the Federal level we have two classifications of work in the U.S. - Employee and Self-employed. And according to a 2019 survey in USA today 1/3 of Americans are independent contractors – thousands of people who contribute to the economic vitality of our country. 

As of today, the Internal Revenue Service (IRS) at IRS.gov defines an individual who works as an independent contractor or owns a business as a sole proprietor or partner is self-employed.

Furthermore, the California Employment Development Department at EDD.CA.gov takes its definition of self-employed from the IRS, which it must then use to follow the definition of what self-employment is - which is either: a self-employed individual, independent contractor, or general partner.

So with this in mind…why then, is a current State Assemblymember using the Dynamex case from 2005 to inspire the formation of AB5 in 2018? Perhaps the Labor Unions involved in AB5 think the now 14-year-old Dynamex case was an opportunity to manipulate the Federal definition of what “self-employed” means or doesn’t mean for a more defined purpose. 

Assemblymember Lorena Gonzalez-Fletcher (@LorenaAD80), can you please provide documentation that gives you the authority (as a state-level official), to obtain an exemption for the State of California to use a different definition of self-employment than the IRS? What gives the State of California the authority to use a different definition of employee or self-employed in any new way it wants, and one that is different than the highest level of government? 

The California EDD website states, “As of January 1st, 2020 all workers are now employees.” The term “worker” can either mean an “employee” or an “independent contractor.” Without justifying documentation to decipher which definition to use (EDD or IRS) - it is not convincing that AB5 is even legal or enforceable. 

Let me be clear, the Borello and the ABC tests were devised to determine what an employee was, NOT what self-employment was, because self-employment is already defined at the Federal level.
Applying theses tests to a person who has declared and can prove themselves, as defined by the IRS as self-employed is then irrelevant.
Next feedback point is that… 

AB5 contradicts itself and lacks an open transparent process in the following ways: 

In the opening text of AB5, it refers to WAGE ORDERS of which there are 17 that describe which fields and occupations are exempted already from employee status, including how and why. 

So, here is the contradiction within AB5… 

We have the Wage Orders referred to, (code 10-1002, a previously existing document applied to AB5 says Creatives and the Professional Performing Arts are already exempted from being defined as employees), and then we have a totally different document created for AB5 that does not exempt Performing Artists. Instead, it lists a Fine Arts exemption determined by privileged parties including representatives of labor unions through a conflicted process. 

The exemption process, I argue is contentious because we, (the workers of California), were not all equally privileged to understand, nor participate in the process of how exemptions were determined. All businesses (for profits and nonprofits alike) need be registered with the state, so we could have easily received a notification from the Secretary of State and/or Attorney General about how our specific business can go about seeking an exemption. 

Speaking of enforceable documents… 

SB 459 signed by Governor Jerry Brown in 2011 specifically deals with the overt misclassification of workers. When pressed about this bill, ASM Gonzalez-Fletcher stated SB 459 wasn’t enforceable and yet, there have been numerous court cases that clearly demonstrate that it has been. 

Several California Senators and Assemblymembers I have spoken to, publicly agree - including those who have since flipped to agreeing that AB5 may not be enforceable for the reasons I state. The state does not have higher authority than the federal government to redefine what an employee is, nor completely ignore the federal definition for self-employed. 

AND so before I ask my clarify question, here is my final statement:

I have demonstrated that I have spent time doing the investigative research relating to AB5; and I am not convinced the author, nor its sponsors have.

There are too many discrepancies that make this bill (which is now a law), challenging to acknowledge. 

AB5 is based on an assumption that self-employed people are in need of help from themselves because they are incapable of negotiating the terms and conditions of their own contracts to provide services of their own creation. Something 1/3 of self-employed Americans across the United States have CHOSEN to do for over 100 years. AB5 now takes away that legal choice for so many. 

One final thing the author does not understand or acknowledge is that long term, Full-Time jobs (with benefits), with one exclusive employer for Professional Performing Artists RARELY exists, with minimal exceptions including union jobs across the United States. Most artists work on a project, gig, event, short term, or seasonal basis - and this is standard practice in our industry. 

In closing, I would like to ask my one clarifying question:
What IS the real reason for AB5? 

Peter G. Kalivas, PGK DANCE!

My commentary/response after the jump...