The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
A new California law makes it harder for "Gig" companies to classify certain workers as independent contractors. Uber and Postmates have now challenged the constitutionality of Assembly Bill 5. Attorneys from Gibson Dunn have thrown the entire economic liberty kitchen sink at the law. From the complaint:
AB 5 violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution, the Ninth Amendment to the United States Constitution, and the Contracts Clause of Article I of the United States Constitution, as well as the Equal Protection Clause, Inalienable Rights Clause, Due Process Clause, Baby Ninth Amendment, and Contracts Clause of the California Constitution.
1. Plaintiffs bring this lawsuit to protect their constitutional rights and defend their fundamental liberty to pursue their chosen work as independent service providers and technology companies in the on-demand economy.
2. AB 5 is an irrational and unconstitutional statute designed to target and stifle workers and companies in the on-demand economy.
The first count is premised on the Equal Protection Clause. The parties argue that the law is infected by an "irrational animus."
101. AB 5 violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution because it draws classifications between network companies and non-network companies without a rational basis for distinguishing between the two groups.
102. Likewise, the statute draws irrational distinctions between independent service providers and non-independent service providers that perform substantially the same work, disfavoring independent service providers relative to similarly situated nonindependent service providers. Laws unconstitutionally singling out a certain class of citizens for disfavored legal status or general hardships are rare. AB 5 is such an exceptional and invalid form of legislation.
103. No sophisticated economic analysis is required to see the pretextual nature of California's proffered explanations for AB 5's differential treatment. There is no rational distinction between network companies and many of the non-network companies granted exemptions under AB 5. The California legislators' focus on subjecting network companies to AB 5, and their willingness to grant a laundry list of non-network company exemptions in order to spare those types of companies the costs and burdens of complying with AB 5, demonstrates irrational animus against network companies in violation of their equal protection rights. This type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet even the relatively easy standard of rational basis review.
Uber and Postmates will have to distinguish this case from Williamson v. Lee Optical. Is the distinction between "network companies" and "non-network companies" who perform the same function any less rational than the distinction between optometrists and ophthalmologists who perform the same function?
But wait–Uber and Postmates argue that strict scrutiny applies! Why? Because the law would "burden, the fundamental rights of network companies and workers to pursue their chosen profession and determine when and how they earn a living." I'm not sure there is a single vote on the Supreme Court for this position. I don't think even Justice Gorsuch would review economic regulations with strict scrutiny.
Uber and Postmates also raise a claim under the Ninth Amendment:
The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments. The right to work on one's own terms—as an independent service provider, rather than an employee—is one of those fundamental rights.
The Ninth Amendment has never been incorporated. It doesn't limit state action. The complaint makes no reference of the Fourteenth Amendment's Privileges or Immunities Clause, which would be the proper constitutional vehicle to raise this sort of claim.
The American Society of Journalists and Authors and the National Press Photographers Association have filed a similar case, represented by Pacific Legal Foundation. Their complaint raises different equal protection claims:
55. Granting a full exemption from AB 5 to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts, but subjecting speaking professionals like Plaintiffs' members who are still photographers, photojournalists, freelance writers, and editors, to a limit of 35 content submissions per publisher per year, creates an irrational and arbitrary distinction among speaking professionals.
56. By enforcing the irrational and arbitrary distinction among speaking professionals, Defendant, acting under color of state law, irrationally and arbitrarily discriminates against Plaintiffs' members in violation of their right to equal protection of the laws.
57. Privileging marketers, graphic designers, grant writers, and fine artists by providing those speaking professions with an exemption from AB 5, while limiting still photographers, photojournalists, freelance writers, and editors to an exemption of only 35 submissions per publisher per year, is not narrowly tailored to any compelling government objective, nor is it rationally related to any legitimate government objective.
They also raise arguments premised on the First Amendment:
74. Pursuant to Cal. Labor Code § 2750.3(c)(2)(B)(ix) and (x), Defendant, acting under color of state law, limits AB 5's exemption for "professional services" as applied to speaking professionals who engage in still photography, photojournalism, freelance writing, and editing to only 35 content submissions per publisher per year. In contrast, AB 5 grants an exemption free from the 35-submission limit to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts.
75. The 35-submission limit applies to Plaintiffs' members based on the content of their speech—i.e., whether they write about or photograph a topic in a manner that constitutes marketing versus a manner that constitutes journalistic reporting, or whether images are graphic design versus still photography.
76. Limiting AB 5's exemption for "professional services" as applied to speaking professionals who engage in still photography, photojournalism, freelance writing, and editing to only 35 content submissions per publisher per year, while granting an exemption free from the 35-submission limit to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts is not narrowly tailored to a compelling governmental interest.
77. Under the AB 5 scheme, journalistic speech is expressly disfavored.
78. By enforcing the 35-submission limit, Defendant, acting under color of state law, unconstitutionally deprives Plaintiffs' members of their freedom of speech as protected by the First and Fourteenth Amendments to the U.S. Constitution.
PLF did not bring a claim under the 9th Amendment.