Another First Amendment Ruling in Employment Law

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Another First Amendment Ruling in Employment Law

The case is American Society of Journalists and Authors Inc. v. Bonta, 9th Cir., No. 20-55734 (Oct. 6, 2021), petition for rehearing en banc denied (Nov. 23, 2021).  California’s “ABC test” for classifying workers as employees or independent contractors, does not violate the First Amendment by limiting employment exemptions for freelance writers, photographers, and videographers.  The law provided only narrow exemptions to freelance writers, photographers, and others.  So, the American Society of Journalists and Authors Inc. and the National Press Photographers Association (collectively “ASJA”) sued for violation of the First Amendment and the Equal Protection Clause of the U.S. Constitution.

The ABC test allows businesses to classify workers as independent contractors only if they: 1) are free from control and direction of the hirer; 2) perform work that is outside the usual course of the hiring entity’s business; and 3) are customarily engaged in an independently established trade, occupation, or business.  Otherwise, the workers are deemed employees and the employer must comply with all employment laws, pay the employer taxes, maintain workers’ compensation insurance, etc.

The ABC test exempts licensed doctors, lawyers, architects, engineers, accountants, some commercial fishermen, salespeople, investment advisors and a limited scope of other workers, including professional services, such as marketing, graphic design, grant writing, barbery, cosmetology and fine arts.  This issue here is that the professional service exemption for freelance workers, like freelance writers and photographers, limited the exemption to workers who submitted fewer than 35 pieces of work to a single entity in a given year and photographers, photojournalists and videographers working on motion pictures (e.g., projects for theatrical, television, Internet streaming, commercial productions, broadcast news, music videos and live shows).

ASJA sued to enjoin the limitations for freelancers, claiming that the 35-piece submission limit and exclusion of motion picture workers offended the U.S. and California Free Speech, Free Press, and Equal Protection and treated marketers and others differently than freelancers.

The ASJA lost at the trial court in seeking an injunction and California (the defendant) got the case dismissed, all which the ASJA appealed.  The ASJA lost the appeal.  The decision noted that the ABC test was not targeted to interfere with speech by journalists and the movie industry and only incidentally affected free speech, thus passing the standard of review for constitutional limitations.  The court also noted the California ABC test was enacted to try to combat abuses of independent contractor status by employers in the specified industries, a legitimate state interest.

Here at Epps & Coulson, LLP we understand that deciding whether a worker is an independent contractor, or an employee may be confusing.  We are available to advise – Dawn:

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