LOS ANGELES—A California appeals court has ruled that the state’s tight restrictions on who may be defined as an “independent contractor” still apply, even if federal law says they don’t, according to a report by the legal site Law.com. The restrictions are part of the controversial California “gig worker” law known as AB5 that narrowly defines which workers may be treated as independent contractors, and who must be hired as an employee.
The law has created confusion in the adult industry, because though the state legislature has exempted numerous industries from the AB5 requirements, neither the original bill nor its successor AB2257 contains any mention of adult performers or crew members.
But last week's ruling by the California Second District Court of Appeals came in a case regarding the trucking industry. In that case, three transportation companies claimed that under a federal law, the Federal Aviation Administration Authorization Act, they were permitted to treat drivers as independent contractors — though under AB5 they would be forced to hire them as more costly employees.
But a three-judge panel on the appeals court ruled that the “ABC Test,” the strict test to define who may be an independent contractor, must apply anyway, because the companies failed to show how classifying the drivers as employees “actually would impact prices, routes, or services.”
The judges also said that the requirement to apply the ABC Test did not prevent the companies from hiring some drivers as independent contractors.
The ABC Test states that to be an independent contractor a worker must be “free from the control and direction of the hiring entity in connection with the performance of the work,” and perform work “outside the usual course of the hiring entity’s business.”
Finally a worker must be “engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”
Though the court decision pertained to the trucking industry, the decision that a federal law cannot “preempt” AB5 would likely also apply to other industries, meaning that even if federal law allowed a performer, for example, to be hired as an independent contractor, the ABC Test would still apply.
How the ABC Test applies to adult industry performers, however, remains unclear.
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