Judge declares Prop 22 unconstitutional, decision to be appealed

California has an odd lawmaking system, and nothing exemplifies that more than the fight over independent contractor status of app-based drivers. The issue has gone from the legislature to the courts, back to the legislature, then to the ballot box, and now again to the courts.

ABC test

Since 1937, California's labor code has had a presumption that anybody who renders services for another is an employee, unless it's proven she is an independent contractor. Over the course of many decades, the courts developed a common-law test to determine independent contractor status, a multifaceted approach called the Borello rule.

Dynamex Operations West v. Superior Court, the California Supreme Court dispensed with that test, saying it was too uncertain, and replaced it with the "ABC test." The hiring entity had to prove all three of the ABC factors to show independent contractor status:

• A The worker is free from the control and direction of the hirer;
• B The work is outside the usual course of the hiring entity's business; and
• C The worker is engaged in a regular business of the same nature as the work performed.

Unless all three factors were shown, the worker was an employee.

The legislature wouldn't leave well enough alone, so later that year, it presented Assembly Bill (AB) 5, which generally put the ABC test into the Labor Code. But like all political processes, the lawmakers were besieged by lobbyists advocating exemptions for their own interests. The result is a bill that contains numerous exemptions that make little logical sense.