A recent federal appeals court decision involving AB 5 is raising questions about why political canvassers are not exempt from the California classification statute unlike other door-to-door occupations.
The 2-1 decision in Mobilize the Message, LLC v. Bonta was issued Oct. 11. The plaintiffs sought a preliminary injunction barring enforcement of AB 5 because it violated free speech under the First Amendment.
Since Gov. Gavin Newsom signed AB 5 following the 2018 California Supreme Court decision in Dynamex, a host of occupations have received exemptions from AB 5, including direct salespersons and newspaper carriers.
The dissent by Justice Lawrence VanDyke noted: “Because the governmental burdens challenged here turn primarily on what is said, not labor distinctions unrelated to speech, I must respectfully dissent from the majority's refusal to protect that speech.”
While Newsom signed AB 2257 in 2020 to exempt more professions, many more continue to seek relief from AB 5.
“The Ninth Circuit’s decision in Mobilize is the latest example underscoring AB 5’s problematic piecemeal approach,” Kyla Christoffersen Powell, president and CEO of the Civil Justice Association of California (CJAC), said in an email response to the Northern California Record. “With AB 5, the California Legislature should have reversed Dynamex altogether rather than cement it into statute and provide only some industries with exemptions.”
The Mobilize case exacerbates the situation, Powell said.
“As the dissent aptly points out, the majority should not have outrightly rejected the plaintiff’s argument that AB 5’s different treatment of its industry issue constitutes content-based discrimination in violation of the First Amendment, subjecting it to strict scrutiny,” Powell said.
AB 5 author Lorena Gonzalez, D-San Diego, has since left the Legislature for a leadership role with the California Labor Federation.
“California policy makers who are concerned about the economy and protecting small businesses should enact legislation restoring the Borello independent contractor test,” Powell said. “The longer the uncertainty and liability exposure created by Dynamex and AB 5 continues, the more small businesses across California who want to operate as independent contractors will find it difficult to survive.
“California courts will also continue to see more litigation challenging AB 5’s exemptions which is unproductive and costly for all.”