©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 403 36 Id. at 955. 37 Id. at 956-57. 38 Id. at 957. 39 AB 5, 2019 bill amending Lab. Code § 3351, adding Lab. Code § 2750.3, and amending Unemp. Ins. Code §§ 606.5, 621. 40 People v. Uber Technologies, Inc., 56 Cal. App. 5th 266 (2020). 41 Bus. & Prof. Code §§ 7448 et seq. 42 However, Proposition 22 was deemed unconstitutional and unenforceable because it limits the power of a future legislature to define the employment status of gig workers. Castellanos v. State of Calif., No. RG21088725, 2021 WL 3730951, at *3-5 (Super. Ct. for Alameda Cty. Aug. 10, 2021) . This ruling is now on appeal. Even if Proposition 22 survives legal challenges, in order to take refuge in the law, gig companies will still have to prove that they are providing app-based drivers with the promised Proposition 22 protections, such as 120% of minimum wage for “engaged time” (while drivers are actively transporting riders or making deliveries), and some expense reimbursement. See James v. Uber Techs., Inc., 338 F.R.D. 123, 144 (N.D. Cal. Jan. 26, 2021). 43 Lawson v. Grubhub, Inc., 13 F.4th 908 (9th Cir. 2021). 44 Castellanos v. State, No. A163655, 2023 WL 2473326, at *1 (Cal. Ct. App. Mar. 13, 2023). 45 The AB 5 exemptions appeared in Lab. Code § 2750.3(b)-(h) (which has since been repealed), while the AB 2257 exemptions appear in Lab. Code §§ 2776-2784. 46 S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations, 48 Cal. 3d 341, 342-43 (1989). 47 Lab. Code § 2776. 48 AB 170, 2019 bill adding Lab. Code § 2750.3(b)(7), was thus followed by AB 323, a 2020 bill. In September 2021, Governor Newsom signed into law AB 1506, which amended Lab. Code § 2783 by extending the exemption to January 1, 2025. 49 People v. Maple Bear, No. 2019-48731, slip op. at 3, 4, 5 (San Diego Superior Court Feb. 18, 2020). 50 State of California v. Maplebear, Inc., No. D077380 (Cal. Ct. App. Feb. 17, 2021), slip op. at 8 (unpublished). 51 Olson v. State of California, 2020 WL 905572, at *14 (C.D. Cal. Feb. 10, 2020) (rejecting argument that it violates equal protection to apply the ABC test to companies providing internet applications for drivers and travelers while exempting ABC coverage for such favored classes as doctors, lawyers, accountants, investment advisers, commercial fisherman, travel agents, and so on). See Olson v. California, No. CV 19-10956 DMG (RAOx), 2020 WL 6439166, at *12 (C.D. Cal. Sept. 18, 2020) (granting motion to dismiss Uber and Postmates plaintiffs’ complaint). 52 Lab. Code § 2750.3(c)(B)(ix), (x) (repealed). AB 2257 removed the 35 “submission” cap as a requirement of contractor status. See Lab. Code § 2778(b)(2)(J). 53 Am. Soc’y of Journalists & Authors, Inc. v. Becerra, No. CV 19-10645 PSG (KSx), 2020 WL 1444909, at *10 (C.D. Cal. Mar. 20, 2020), appeal dismissed, No. 20-55408, 2020 WL 6075667 (9th Cir. Aug. 20, 2020). 54 California Trucking Ass’n v. Becerra,433 F. Supp. 3d 1154 (S.D. Cal. 2020), rev’d sub nom. California Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). Becerra relies on a state judicial decision, California v. Cal Cartage Transp. Express, LLC, No. BC689320 (Los Angeles Superior Ct. Jan. 8, 2020), which ruled that the ABC test effectively prohibits motor carriers from using independent contractors to provide transportation services and thus has a significant, impermissible effect on motor carriers’ “prices, routes, and services” that runs afoul of the FAAAA. The State and the labor union appealed and the Ninth Circuit reversed, holding that the state statute had only a tenuous, remote, or peripheral connection to rates, routes, or services and thus was not preempted by FAAAA as applied to motor carriers. California Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). 55 California Trucking Ass’n v. Bonta, 996 F.3d 644 (9th Cir. 2021). 56 People v. Superior Court (Cal Cartage Transportation Express, LLC), 57 Cal. App. 5th 619 (2020). 57 Lab. Code § 2754. 58 See § 1.5. For the standard that the EDD applies in determining whether a worker is an employee or independent contractor, see the Employment Determination Guide, https://www.edd.ca.gov/pdf_pub_ctr/de38.pdf (visited Mar. 14, 2022)(listing multiple elements to consider: instructions/supervision, training, continuing relationship, reports, payments, expenses, tools and materials, investment, profit or loss, services offered to general public, right to fire, right to quit, level of skill required, beliefs of the parties, and business decisions). 59 22 Cal. Code Regs. § 4304-1. 60 Lab. Code § 226.8(a)(1). 61 Lab. Code § 226.8(a)(2). 62 Lab. Code § 226.8(b), (c). 63 Lab. Code § 226.8(e)(1). 64 Lab. Code § 226.8(e)(2). 65 Lab. Code § 2753(a). Liability under this section does not extend to persons who are advising their employer or to licensed attorneys who are providing legal advice to their clients. Lab. Code § 2753(b). 66 Noe v. Superior Court (Levy Premium Foodserv. Ltd. P’ship), 237 Cal. App. 4th 316, 334-41 (2015). There may, however, be a UCL claim for conduct made unlawful by section 226.8. See id. at 326 (“the UCL … might provide plaintiffs some form of remedy for a violation of section 226.8”). 67 Lab. Code § 2810(a).
RkJQdWJsaXNoZXIy OTkwMTQ4