AB5: California’s much-predicted freelancer disaster

“California’s new employment law has boomeranged and is starting to crush freelancers” [Elaine Pofeldt, CNBC; Kerry Flynn, CNN Business] “As with many of my colleagues today, because I live in California, I was just told that I can no longer hold a paid position with SB Nation.” [Rebecca Lawson, Mavs Moneyball; Whitson Gordon thread on Twitter] “Separately, there’s some bit of irony in the fact that just a few months ago, Vox itself had a headline celebrating AB5 calling it a ‘victory for workers everywhere.’ Except, I guess, the freelancers who worked for Vox.” [Mike Masnick, Techdirt] “These were never good jobs,” claims the measure’s sponsor, Assemblywoman Lorena Gonzalez (D-San Diego), but lots of freelancers have made clear they disagree [Billy Binion] “Mainstream politicians and pundits love to cite ‘unintended consequences’ when their preferred policies cause harm in the exact ways libertarians said they would.” [Elizabeth Nolan Brown, earlier]

More: impacts on music, theater, and the performing arts make AB5 a creative-unfriendly law [Joshua Kosman and Carolyn Said, San Francisco Chronicle]

Filed under: California, music and musicians, newspapers, publishers, wage and hour suits

May 28 roundup

Squatter sues homeowners from prison, gets default judgment [Eric Ross, KOAA; Colorado Springs. Colo.]
“Judge Thomas Hardiman on the history of judicial independence” [Cato Audio of last year’s Constitution Day lecture]
There really needs to be an off ramp at Child Protective Services by which an investigation of a family that proves unfounded can just end instead of cycling through more and more investigation [Lenore Skenazy]
Authors, journalists, photojournalists challenge AB5 in court: “California’s Anti-Freelancer Law Violates the First Amendment” [Trevor Burrus on Cato amicus brief in American Society of Journalists et al. v. Becerra, Ninth Circuit]
California’s legislature has long been itching to gut or repeal Proposition 109 (1996), in which voters banned race and sex preferences. Now they’re going to try to bring back the old identity-spoils system [Gail Heriot, RealClearPolitics]
“Identifying #NeverNeeded Regulation after COVID-19” [Cato Daily Podcast with Caleb Brown and Matthew D. Mitchell, Mercatus Center]

Filed under: California, Child Protective Services, COVID-19 virus, judges, racial preferences

Labor and employment roundup

Twenty years ago, some unions campaigned to make telecommuting illegal. Imagine if they’d managed to stop it [Reason 20 years ago feature, quoting my column back then]
“Surge in working from home raises cyber exposure issues” [Judy Greenwald, Business Insurance]
Provision slipped into CARES Act: mid-sized businesses that take a loan under the program would not be legally permitted to resist unionization [F. Vincent Vernuccio, Mackinac Center]
Another effect of California’s awful AB5: interfering with availability of health care in parts of rural California that rely on itinerant medical contractors [K. Lloyd Billingsley, Independent Institute; earlier here, here]
From before the crisis: insights into where federal Department of Labor is headed [speech by Secretary Eugene Scalia, teleforum with Jonathan Berry and Cheryl Stanton, both Federalist Society events] I’m quoted on the Trump administration record on labor issues, though to state the obvious my evaluation of it differs from the writer’s [Rachel Cohen, Washington Monthly]
More from before crisis: New Virginia employment legislation lays out unusually broad definition of harassment, bad for employers and bad for speech [Hans Bader] Labor history overwhelmingly written by historians partial to the labor movement and its goals, and it shows [Mark Pulliam, Law and Liberty and Independent Review] “Details in new BLS report suggest that most of the gender earnings gap is explained by age, marital status, children, hours worked” [Mark Perry, AEI] “Do Right-to-Work Laws Work? Evidence on Individuals’ Well-Being and Economic Sentiment” [Christos Andreas Makridis, Journal of Law and Economics]

Filed under: COVID-19 virus, labor unions, Virginia

Gig/freelancer economy roundup

In an emergency that has made trucking, logistics, and home delivery uniquely important, fractured the schedules of countless parents and caregivers, and sent the services sector reeling, it would be nice if California and other states were not making war on the work arrangements needed for the situation. That’s why California’s AB5 fiasco (earlier here, here) along with similar moves in New Jersey and elsewhere, come at the worst time.

“Lisa Yakomin, president of the Association of Bi-State Motor Carriers… said the California bill is expected to cost tens of thousands of truckers their jobs.” [Dana Rubinstein, Katherine Landergan and Anna Gronewold, Politico; Deborah Lockridge, TruckingInfo; California independent trucker coalition] Operating in New Jersey trucking under an independent contractor model “is becoming incredibly risky,” as the state assumes power to shut down alleged violators by issuing stop work orders [David Kim and Salvador Simao, Ford Harrison]
Jugglers unite: “My full-time job is being a mother, my second is cleaning houses. New Jersey please keep it that way.” [Antonette McKay, Star-Ledger]
Musicians on the ropes as venues shut down. Wouldn’t it be nice if they could look forward to returning to an existent gig industry? [Fight for Freelancers NJ, Brian Ralston et al., Kim Kavin, Daily Kos (“The state could argue that by hiring you to play your French horn two nights a week, the theater violated prong A of the ABC test”), Michael Tanner (Lake Tahoe Music Festival), Ravi Rajan, Orange County Register]
What hope for legal challenges to AB5? [Stephen Melnick, WLF]
Audio/video: Reason video with John Osterhoudt on the California mistake; “State regulators and the gig economy” [Federalist Society teleforum with Alexander MacDonald]
Getting services distributed to dispersed at-home locations is going to create a host of new communication challenges, but good luck with that: “The California legislature designed AB5 in a manner that completely disregards how professional translators and interpreters work.” [Philip Shawe, Crain’s New York]

P.S. Related Cato post now up. Truckers especially have many more problems than this right this moment responding to the COVID-19 pandemic outbreak, read about some of them here (and help if you can!) They have begun getting direly needed removals of regulations. But don’t let this one slip off the list.

Filed under: California, COVID-19 virus, disasters, music and musicians, New Jersey, small business, wage and hour suits

Gig/freelancer economy roundup

More on the chaotic, destructive effects of California’s AB5 (earlier here, here, etc.):

“Non-equity theaters, music venues and jazz clubs, dance companies, small cultural festivals of all types face very real threats” [Brendan Rawson, Cal Matters] Translators and interpreters hard hit by law [Dan Plante, KUSI]
Women-owned businesses “reeling” [Elaine Pofeldt, Forbes] Disabled workers “hugely impacted” [Markos Moulitsas, Daily Kos]
California Assemblyman Kevin Kiley (R-Granite Bay) has asked members of the public for their stories about how AB5 has affected them. You can see the results here;
“Ready, Fire, Aim: How State Regulators Are Threatening the Gig Economy and Millions of Workers and Consumers” [U.S. Chamber Employment Policy Division]
“The New York Times is hiring a contractor to write about California real estate, but because of AB5 they will not be hiring anyone in California.” [Emma Gallegos on Twitter]
Not an isolated outrage: union allies nearly got such a bill passed in New Jersey in recent weeks [Alida Kass, Star-Ledger; Jen Singer, Philadelphia Inquirer] New York’s Gov. Andrew Cuomo has now signaled support for something similar [Evie Fordham, Fox Business] And backers want to take the idea national through a bill called the PRO Act, or HR2474/S1306, in the U.S. Congress [Kim Kavin, Daily Kos; Markos Moulitsas, Daily Kos]

Filed under: art and artists, California, New Jersey, New York, small business, wage and hour suits

U.S. Department of Labor steps back on joint-employer rule

The U.S. Department of Labor has proposed a final rule stepping back from the Obama administration’s damaging effort to stretch the definition of “joint employer” so as to tag companies with liability over the employment actions of many franchisees, subcontractors and even suppliers. “The new rule beats a retreat from the past administration’s aim ‘to force much more of the economy into the mold of large-payroll, unionized employers, a system for which the 1950s are often (wrongly) idealized.’ That very same goal is at the root of California’s unfolding debacle with AB5, a law that tries to force many lines of freelancing into a direct-employment model and is already harming large numbers of workers it had purported to help.” I explain in a new Cato post.

Filed under: minimum wage, National Labor Relations Board, wage and hour suits

September 27 roundup

It works if your court is in Maine: “Motion to Continue Because of Moose Attack” [Lowering the Bar]
“John Bolton is Right About the International Criminal Court” [Jeremy Rabkin, Weekly Standard, earlier]
No kidding. “Unintended Impact: Detroit Crackdown on Landlords Could Boost Rents” [Deadline Detroit; Violet Ikonomova, Metro Times]
Advocacy groups “were focused on food deserts ‘because access was a social justice issue. It wasn’t based on evidence because there wasn’t any evidence.'” [Tamar Haspel, Washington Post]
“Good moral character” prerequisites for holding licenses are vague and subjective even in ordinary times, and should not be pressed into surrogate use against political foes [Jonathan Haggerty and C. Jarrett Dieterle, R Street Institute]
California fisheries and Chevron deference: “An Otter Travesty by the Administrative State” [Ilya Shapiro on Cato cert amicus petition in California Sea Urchin Commission v. Combs]

Filed under: administrative law, Detroit, international human rights, landlord tenant law, Maine, obesity, occupational licensure

Finally, rules to rein in agency guidance documents

Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. Unfortunately, this and other forms of “subregulatory guidance” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before, all without going through the notice and comment process required by regulation, with its protections for regulated parties. Fair? Lawful? The Department of Justice under Jeff Sessions has lately sought to bring agency use of guidance documents under better control, and in particular end the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. I’m interviewed about all this by Caleb Brown for the Cato Daily Podcast.

More: Charlie Savage, New York Times (DoJ revokes batch of guidance documents), Matt Zapotosky/Washington Post; Scott Shackford, Reason (rescission of guidance letter on local fines and fees should be read not as blessing those practices as okay, but as reflecting fact that federal government lacks clear statutory or constitutional mandate to intervene against them); Stephen McConnell, Drug and Device Law (“DOJ Says its Litigators May Not Use Noncompliance with FDA Guidances as Basis for Civil Enforcement Actions”).

Filed under: administrative law, FDA, on TV and radio, petty fines and fees, regulation and its reform

May 10 roundup

Redistricting, transit farebox, Court of Appeals, decriminalizing barbers, and more in my latest Maryland policy roundup [Free State Notes] And I’m quoted on the highly unpersuasive “six-state compact” scheme, which amounts to an excuse for leaving gerrymandering in place [Danielle Gaines, Frederick News-Post]
After scandal over falsified safety records, fired track workers sue Washington’s Metro on claims of discrimination and hostile work environment [Martine Powers, Washington Post]
Chicago mulls ordering private shopkeepers to provide bathroom access to non-customers who say they’ve got an emergency need. Too bad its own CTA is no-go zone [Steve Chapman]
Says a lot about why Obama CPSC ignored pleas for CPSIA relief: “US Product Safety Regulator Sneers at ‘Fabricated Outrage’ Over Regulations” [C. Ryan Barber, National Law Journal on Elliot Kaye comments]
“Implied certification” theory, okayed by SCOTUS in Universal Health Services last year, enables False Claims Act suits hinging on controversial interpretations of regulation [Federalist Society podcast with Marcia Madsen and Brian D. Miller] “A Convincing Case for Judicial Stays of Discovery in False Claims Act Qui Tam Litigation” [Stephen A. Wood, WLF]
Judge signals reluctance to dismiss hospital’s suit against Kamala Harris over her actions as California AG on behalf of SEIU in merger case [Bianca Bruno, Courthouse News via Sean Higgins/Washington Examiner, earlier]

Filed under: Chicago, CPSC, CPSIA, Kamala Harris, Maryland, public employment, qui tam, redistricting reform, transit

Long after the accusation

Seven-year-old accuses teacher of shoving him, teacher is jailed and fired, a big lawsuit follows. But ten years later their lives once again intersect…. [Marc Fisher, Washington Post Magazine; Josh Kaplowitz; Raynard Ware; and particularly recommended, Fisher’s 2003 story (“He began his teaching stint with idealism. And ended it in jail”)]

Filed under: school discipline, schools, Washington D.C.