The McGeorge Alternative Summer Advantage Program (“McGeorge ASAP”) is a self-directed volunteer summer legal research project created by alum Lexi Purich Howard and Asst. Dean of Career Development Molly Stafford in response to COVID-19. The program matched McGeorge students who lost summer opportunities due to the pandemic with local attorneys for guidance on a research project on the topic of the student’s choosing. This week’s ASAP paper was authored by Kelli Sanshey (2L, 2022) under the mentorship of Khoa Ngo, an attorney for the California Department of Health Care Services. This paper was written during the summer of 2020 and prior to the passage of Assembly Bill 5; however, Ms. Sanshey’s insights on the issues remain pertinent and will inform how we watch these court cases as they move forward.
“Assembly Bill No. 5 (“AB 5”), signed into law by California governor Gavin Newsom on September 18, 2019, adds Section 2750.3 to the CA Labor Code. AB5 clarifies the legal designation of an employee or independent contractor, codifying the California Supreme Court Decision Dynamex Operations West, Inc. v. Superior Court of Los Angeles. Dynamex implemented a three-pronged test, also known as the “ABC” test, which presumes that workers are employees unless they are exempt, or the employer can demonstrate that:
(1) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(2) the worker performs work that is outside the usual course of the hiring entity’s business; and
(3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
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A number of private companies, including Uber, Lyft, Doordash, Postmates, and Instacart, have responded to AB5 by placing Proposition 22 on the ballot for the November 2020 election. Popular initiatives allow California voters to overturn a law passed by the California government, or to circumvent a Supreme Court ruling…”