This Week At The Ninth: Contractor Speech And Seized Cars

• Published date: 12 October 2021
• Subject Matter: Employment and HR, Government, Public Sector, Employee Rights/ Labour Relations, Constitutional & Administrative Law
• Law Firm: Morrison & Foerster LLP
• Author: Mr James R. Sigel and Lena H. Hughes

This week, the Court confronted constitutional challenges to a California statute altering the test for determining whether workers are employees or independent contractors and an Arizona statute governing civil forfeitures.

AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS, INC. v. BONTA
The Court holds that California's AB 5, which modified the test for determining whether a worker is an employer or independent contractor, does not violate the First Amendment as applied to freelance writers and similar professionals.

The panel: Judges Callahan, Forrest, and Seeborg (N.D. Cal.), with Judge Callahan writing the opinion.

Key highlight: "[T]he statute is aimed at the employment relationship-a traditional sphere of state regulation. See DeCanas v. Bica, 424 U.S. 351, 356 (1976). Such rules understandably vary based on the nature of the work performed or the industry in which the work is performed, and section 2778 is no different in this regard. But whether employees or independent contractors, workers remain able to write, sculpt, paint, design, or market whatever they wish."

Background: In AB 5, California codified a new 3-part test for determining whether workers are employees or independent contractors. The law exempts certain "professional services" occupations from its scope, including certain freelance writers and photographers. For freelance writers, the exception applied to anyone who submitted fewer than 35 pieces of work to a single entity in a year (an exception that was then changed while the litigation was underway to turn on where freelancers work and whether they work for more than one entity). The exception for photographers applied to anyone not working on a "motion picture."

The American Society of Journalists and Authors and the National Press Photographers Association brought suit to enjoin AB 5. They contended the law violated the First Amendment and the Equal Protection Clause because, by categorizing them as employees, it burdened the writers and photographers not covered by the "professional services" exception. The district court granted California's motion to dismiss.

Result: The Ninth Circuit affirmed. First, the Court rejected the plaintiffs' First Amendment argument, holding that AB 5 regulated economic conduct and not speech. As the Court explained, AB 5 does not "limit what someone can or cannot communicate," or "restrict when, where, or how someone can speak," but "instead governs worker classification" and "is aimed at the...