On June 30, the Supreme Court refused to hear a case. As a result, AB5 is the law of the land. Huh???
By setting out a clear definition of who should be an “employee” and who can be an “independent contractor,” AB5 is the law written to rein in the growing “gig” economy.
Local 853 Business Rep and Chair of the Nor Cal Construction Committee Stu Helfer played a part in writing the construction trucking language for AB5. “It’s always funny to me when someone on a construction pre-job meeting will chime in and say, ‘This is what the author of the law meant’ and I just smile, knowing that I was the part of the group that authored the construction trucking language in the bill,” says Helfer.
As soon as the law was passed in 2019, the California Trucking Association sued, alleging that they should be able to continue to misclassify truck drivers as independent contractors even though those drivers work at the beck and call of the companies. Over the next three years, the trucking association lost at the 9th Circuit Court of Appeals, but they pursued the case all the way up to the Supreme Court. “I believe we would have prevailed on the merits of the case at the Supreme Court, given the argument that the opposition was making,” said Helfer, “Many were skeptical, given the current make-up of the court.”
The Supreme Court’s decision not to hear the case means the 9th Circuit Court of Appeals ruling stands. And that means that all of the trucking companies that claim that their truck drivers are independent contractors must now treat most of them as employees, enabling the drivers to enjoy the benefits of sick leave, workers comp, and the right to organize. The presumption now is that an individual is an employee – it must be proven that the worker is truly independent…free from the control of and being in a different core business the hiring party.
This has been a 3-plus-year project but goes back long before the California Supreme Court’s “Dynamex” decision that led to this result. Helfer wanted to recognize former Assemblymember Lorena Gonzalez, who now heads the California Labor Federation, for doing such a great job on creating the law and pushing it to passage. He also recognized lawyer Scott Kronland, from the law firm of Altshuler Berzon, who shepherded the case from the beginning and California Attorney General Rob Bonta who took the case to the 9th Circuit Court.
Helfer says he plans to talk with the trucking companies that have worked with the union on project labor agreements and bring them all in to try to arrange for a master contract. “We’re potentially talking tens of thousands of new members if we can get that done.”
Helfer recollects: “In 2012, I played a part in rewriting Labor Code Section 1720.3, which fixed the law to make sure that the off-haul work from construction sites was covered under prevailing wage law. In 2015, I did AB219 which is now codified as Labor Code Section 1720.9; this one covers prevailing wage requirements for ready-mix drivers. My work on AB-5 is now Labor Code Section 2781(h)(2). I’ve been working on this matter for around twenty years, so it feels great to be at this point now.” he adds, with a slight smile. “Who knows what might be next….”