California Legislature should protect, not limit, workers' freedom of choice

By Senate Republican Leader Shannon Grove

Published in the Orange County Register on March 6, 2019 at 11:49 am

If I was to tell you that you needed to be tested on your “ABCs” you would probably think it would be easy, right? – Wrong! In California, if you are an employer being asked to take this test, you likely have a big problem.

This far-reaching ruling significantly changes the working situation of two million Californians who currently choose to be their own boss. It will impact contractors from all types of industries such as barbering and cosmetology, agriculture, education, health care, construction, technology, transportation, and art just to name a few. And, it will disproportionally affect the young, diverse and educated workforce who are increasingly choosing to be freelancers and independent contractors.

Being a freelancer or independent contractor appeals to many who wish to make a living on their own terms, have flexibility in work time and location, or earn extra money. According to a 2018 Bureau of Labor Statistics Economic report, 79 percent of independent contractors prefer their work situation to traditional employment and a 2017 survey revealed that most full-time workers who left their jobs made more money as a freelancer within a year.

Single moms who work on their own accord while raising their children don’t want to come into the office for 8 hours a day and choose to work as a contractor. College students who work in the gig economy who have to drive after class to afford books will now have to create their own business as ‘John Doe Enterprises.’ These workers choose this work situation because it works for them, and they can be in control of their work-life balance. I’m a business owner, and from my point of view, it is not easy to start your own business in this state. They are simply going to choose to find work elsewhere, and not continue these services. I get my hair done, and so do millions of women in California   My salon owner is afraid for her business’s future because her  stylists now  have to become an employee. Those who do your hair will no longer be able to set their own appointments, charge their own rates, or be independent. Instead, they will have to work eight hour schedules and adhere to their employer’s rules. This fear is a reality for hairstylists and more because of a 2018 California Supreme Court ruling, known as the Dynamex decision which adopted an “ABC test” for employment status.

This test determines whether a person is an employee or an independent contractor. Prior to this decision, employment status was determined by a test that accounted for the diversity of California industries and workers.

Whether a worker is an employee or an independent contractor is an important distinction because it determines employment rules and regulations, including rules related to hours and wages. California has many diverse industries with a diverse group of workers. The Dynamex decision eliminates the flexibility for independent contractors to exist in many professions.

Think about how this decision is affecting the entire economy and the way that people work. Hardworking citizens are under attack because of the Dynamex decision. It has always been the responsibility of the legislative branch to create laws, the executive branch to approve and enforce laws, and the judicial branch to interpret them. However, in this case, the California Supreme Court overreached and did not just interpret the law; they re-wrote it. California is the only state to have enacted such a strict standard by judicial authority. This should not be the case.

The idea behind the Dynamex decision was to protect employees who needed to be protected, but the unintended consequences are detrimental to many industries. The only easy thing about this judicial decision to apply an ‘ABC’ test is that the Legislature must get involved. The Legislature must take this decision seriously, act appropriately to protect workers, and exercise its authority over labor law that was inappropriately enacted in the judicial system.

As an independent contractor in California, the ABC’s are far from as easy as 1, 2, and 3. If California is really the land of opportunity, the Legislature needs to protect workers’ rights and ensure they have the ability to choose when they work, where they work, what they work on, and how much they earn.