Federal appeals court upholds California’s gig worker law

A federal appeals court upheld part of a California law that determined when contractors could be considered employees. 

The 9th Circuit Court of appeals rejected a challenge from journalism associations seeking to argue against an exemption to Assembly Bill 5 that applied for freelance writers, arguing that it inhibited free speech.

U.S. Circuit Judge Consuelo Callahan, writing for the three-judge panel, said that the law “regulates economic activity, not speech, and a rational basis supports the distinctions it draws.”

“We’re pleased with the court’s decision,” California Attorney General Rob Bonta’s (D) office told The Hill in a statement. 

“At the California Department of Justice, we’ll continue to defend laws that are designed to protect workers and ensure fair labor and business practices,” the statement said. 

A.B. 5 classifies independent contractors as those who perform work outside of the company’s normal business, free from the hiring company’s control, and are engaged in an independently established business.

The American Society of Journalists and Authors and the National Press Photographers Association sought to challenge the exemption provided to freelance writers and photographers.  

The exemption applied to those who submitted less than 35 pieces of work to a single entity in a given year and didn’t apply to photographers and videographers working on “motion pictures.”

The groups argued that the limitations of the exemption inhibited free speech and freedom of the press because the restrictions did not apply to exemptions for other professionals like marketers or artists. They also argued that the restrictions forced freelancers to become employees, therefore inhibiting their ability to do freelance work.

Callahan said the law doesn’t regulate speech as it “does not, on its face, limit what someone can or cannot communicate. Nor does it restrict when, where, or how someone can speak.”

While she acknowledged that the classifications may impose greater costs on hiring entities, “such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation.”

Jim Manley of Pacific Legal Foundation, who is representing the plaintiffs, told The Hill that the plaintiffs “look forward to correcting” the circuit decision, either by asking the Supreme Court to review the case or asking the appellate court to reconsider.  

Updated at 12:44 p.m.