California’s AB5 Is Such A Mess, ‘Pandemic Pods’ Might Not Even Be Safe

California’s AB5 Is Such A Mess, ‘Pandemic Pods’ Might Not Even Be Safe

AB5 is a jobs-killing monstrosity that’s hurting not only adults but children, too.
Kelsey Bolar
By

California lawmakers scrambled to clean up their disastrous Assembly Bill 5 statute, passing a bill last week into law that grants certain gig workers relief from the harmful employment regulations that took effect Jan. 1. Among those exempted from AB5 are now freelance writers, editors, producers, photographers, translators, and musicians.

While it’s good that people in these industries will get relief, the harmful effects of AB5 still persist for thousands of independent workers who lack the resources and connections they need to lobby for special carve-out treatment. Among those not included in the clean-up effort are private teachers and tutors, leaving both parents and educators confused and vulnerable to fines and lawsuits for the crime of working and trying to educate their kids.

“The verbiage is really, really unclear when it comes to tutors,” said Lauren Holman, a mom and online history teacher based in San Diego, California. “Even if AB5 wasn’t originally intended to impact tutors, now they are one of the most highly sought-out positions, and with the way the language of the bill is, it will absolutely impact them.”

Holman is one of the thousands of California parents who formed “pandemic pods” with fellow parents to combat COVID-19 school closures. As a working mom, Holman initially wanted to hire a private tutor to help teach children in her pod. Because of AB5, however, she believes that would be illegal unless her pod forms an established business then hires a private tutor as a W2 employee with benefits, employment protections, and more — as mandated by AB5.

So instead of hiring outside help, Holman is switching off days with fellow pod parents to teach. “I’m a teacher as well, and now I’m taking time out of my job to be able to homeschool not only my own children, but this group of kids,” she said. “As a working mom, this is a huge struggle for me.”

How AB5 Hurts Workers

California Assemblywoman Lorena Gonzalez, who authored the original AB5 text, denies that AB5 affects parents’ ability to hire private tutors. Independent Women’s Forum reached out to Gonzalez to clarify how that’s possible.

In order to legally perform independent contract work in California, AB5 mandates that businesses (that aren’t granted special exemptions) meet a rigid, three-pronged “ABC” test. That test requires that all three conditions be satisfied in order to hire a worker as an independent contractor, including:

  • The worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract and in fact.
  • The worker performs work that is outside the usual course of the hiring entity’s business.
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

In the case of hiring private tutors as independent contractors, parents forming pandemic pods have two problems: First, they would not meet the definition for being an established business, which is required to hire independent contractors under AB5. Second, parents would instruct private tutors on when to work and what to teach, which appears to violate the “free from the control and direction of the hirer” clause.

Gonzalez did not respond to the request for more clarity about her position.

“Lorena Gonzalez is hiding behind a carefully worded and deceptive statement when she knows the state of California has already issued guidelines that make parents and tutors subject to AB5’s absurd requirements,” said Carl DeMaio, chairman of Reform California, an organization advocating against AB5. “Even the liberal attorneys are having to admit that the law is so fatally flawed as written that it traps everybody up.”

AB5 broadly requires companies to reclassify “gig” workers as full-time employees. It was designed to target the gig economy, specifically companies such as Uber, Lyft, and DoorDash, which rely on thousands of independent contractors to provide their services.

In exchange for flexible hours and the ability to come and go as they please, these workers forego benefits such as health insurance, sick leave, and more. An overwhelming majority (71 percent) of independent contract workers say the freedom of freelance work outweighs the benefits of being an employee.

California Law Is Harming Educational Opportunities

AB5 hits Holman, a teacher, and a mom, with a double-whammy. In addition to not being able to hire a private tutor for her children’s pandemic pod, Holman is unable to pick up extra work as a freelance tutor.

“I had seriously thought for a while about offering my services as a tutor,” she said. “Once AB5 came out, that went out the window.”

The uncertainty about AB5’s effects on parents’ ability to hire private tutors and tutors’ ability to privately teach is emblematic of the larger problems with the law: It’s confusing, makes it hard for people to solve problems and fill needs (as they would in a free market), and is fundamentally unfair.

The fact that California lawmakers passed sweeping exemptions for certain industries and not others is a laughable insult to “equality” and “justice for all.” Are freelance writers and musicians — two powerful, politically connected professions — more worthy than florists or event planners? Of course not. If AB5 is unjust for one, it’s unjust for all.

While problematic during normal times, the harmful effects of AB5 are exaggerated during the coronavirus pandemic. For parents trying to educate their kids, the law is especially ill-conceived. Whether parents and tutors will be tracked down and punished is something AB5’s bureaucratic enforcers will ultimately decide, but in the meantime, one thing is clear: AB5 is a jobs-killing monstrosity that’s hurting not only adults but children, too.

Kelsey Bolar is a contributor to The Federalist and a senior policy analyst at Independent Women's Forum. She is also the Thursday editor of BRIGHT, a weekly newsletter for women, and the 2017 Tony Blankley Chair at The Steamboat Institute. She lives in Washington, DC, with her husband, daughter, and Australian Shepherd, Utah.

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