398 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com and professionals providing cosmetic services (e.g., licensed barbers and manicurists), again, provided certain criteria are met. Also exempted from AB 2257 are certain licensed insurance agents and brokers, licensed physicians, surgeons, dentists, podiatrists, psychologists, or veterinarians, licensed attorneys, architects, engineers, private investigators and accountants, registered securities broker-dealers or investment advisers or their agents and representatives, freelance writers, underwriters, real estate appraisers and home inspectors, data aggregators, occupations linked to the music industry, specialized performers teaching master classes, direct salespersons, and licensed commercial fishermen (through 2022 unless extended by law). Newspaper exemption. In 2020 newspaper companies obtained another temporary reprieve from the ABC test, receiving an exemption for newspaper distributors working under contract with a newspaper publisher, and newspaper carriers working under contract with either a newspaper publisher or distributor. This exemption was set to expire on January 1, 2022, but was extended for three years to January 1, 2025.48 Early applications of AB 5 and AB 2257. California law enforcement officials have painted a target on the back of the drive-for-hire industry. The San Diego City Attorney obtained a preliminary injunction against Instacart (a firm offering same-day grocery delivery via smartphone software technology) with respect to classifying its “Shoppers” as independent contractors instead of employees. The trial court, acknowledging uncertainty in the law, vaguely enjoined Instacart from “failing to comply with California employment law with regard to its Full-Serve Shopper employees within the City of San Diego.” The court explained: “ [I]t is more likely than not that the People will establish at trial that the ‘Shoppers’ performed core functions of defendant’s business, that they are not free from defendant’s control; and that they are not engaged in an independently established trade, occupation or business. Establishing any one of these would be enough, and … the burden of establishing proper classification is on the defendant.”49 On appeal, however, the Court of Appeal overturned the injunction and remanded to the trial court for further proceedings in light of Proposition 22. The injunction was “impermissibly vague” because, in “a decidedly undeveloped area of law,” the trial court “failed to provide adequate notice of the conduct proscribed by the injunction.”50 Challenges to AB 5 and AB 2257. Legislative adoption of the ABC test sparked organized resistance. Gig companies invoked the California initiative process to change the law, culminating in the passage of Proposition 22 in November 2020. Meanwhile, Uber and Postmates drivers unsuccessfully argued that the myriad exemptions created by AB 5 are irrational and violate equal protection.51 A challenge by freelancers was likewise initially unsuccessful. Journalists and photographers sought injunctive relief against state enforcement of AB 5 on the
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