The U.S. Court of Appeals for the Ninth Circuit has again upheld California’s Assembly Bill 5, the 2019 law that adopted the ABC test to determine whether a worker is an employee or independent contractor, in a First Amendment challenge.
In 2019, the legislature enacted AB 5, which adopted the ABC test used by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles.
Under AB 5, all workers are assumed to be employees, not contractors, unless the employer can affirmatively satisfy the ABC test by proving three things: (A) that the worker is free from the control and direction of the hirer when performing the work, both under the contract for the work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.
AB 5 faced immediate challenges, including a lawsuit filed by a political committee, a California nonprofit, and a company that provides doorknocking and signature-gathering services. The plaintiffs argued that the law violates the First Amendment because it imposes content-based restrictions on speech.
A U.S. district court disagreed, denying the plaintiffs’ motion for a preliminary injunction that sought to restrain enforcement of AB 5, and a panel of the Ninth Circuit affirmed.
While recognizing that “[f]ew...
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