AB 5: Impact on Campaign Workers

As you have certainly read, Assembly Bill 5, authored by Assemblymember Lorena Gonzalez (D-San Diego), aims to reclassify millions of California workers as “employees” instead of “independent contractors.”  It has now been passed by both the State Assembly and Senate and is awaiting Governor Gavin Newsom’s signature.  Though targeted primarily at ride sharing services and other “gig” workers, this law could substantially impact the classification of political campaign workers such as paid campaign staff, phone bank operators, canvassers and petition circulators.

AB 5 codifies the test articulated by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal. 5th 903.  Under the test, any person who performs work for pay is considered an “employee” rather than an “independent contractor,” unless the hiring entity can show that the work performed is outside the hiring entity’s usual course of business (e.g., an office design specialist who provides services to a tech startup), the worker is free from the hiring entity’s control and direction over how the work is performed, and the worker is in business for him or herself.

Many political campaign workers will not be able to satisfy the test.  While consultants, attorneys and pollsters who have their own firms and who work for several political campaigns at the same time will probably be able to avoid the reach of AB 5, campaign staff, phone bank workers, canvassers, petition circulators and other lower-level workers on candidate or ballot measure campaigns will likely be reclassified as employees.  Not only would these campaign workers be entitled to significantly greater rights and benefits from the campaigns, but the campaigns would incur significant new expenses (in the form of payroll, unemployment and disability taxes) and significant new administrative burdens (in the form of employee handbooks, training and quarterly employment flings).

You probably have also read about various interest groups seeking and obtaining exemptions for their industries and type of workers.  Although several conversations have taken place with individual Legislators about exempting political campaigns, our understanding is that no such exemption has been formally proposed.  In sum, AB5 – if enacted and not overturned by a court or referendum – is likely to compel political campaigns to face the fact that they are effectively “employers,” which have to comply with a multitude of employment laws.

*          *          *

Feel free to contact a Sutton Law Firm attorney if you would like to discuss how AB5 may affect political campaigns.