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California and the Terrible, Horrible, No Good, Very Bad Statutory Employee Classification Scheme


Richard H. Gilliland III


August 8, 2022

The battle over worker classification between state governments, on the one hand, and gig economy companies, on the other, has raged since at least the first time someone ordered an Uber. Nowhere has this battle played out more prominently in recent years than in California. In 2019, the state legislature passed AB 5, a bill which adopted a stringent independent contractor standard and effectively classified all gig economy workers as employees of the companies whose apps they use to find work. AB 5’s ripple effects were enormous—the significant popularity of gig economy apps among consumers launched what might have been obscure, legalistic wrangling about worker classification standards to the forefront of the public consciousness. The bill’s passage engendered public outcry, legal challenges, media hysterics, and a record-breaking referendum initiative whose outcome is still the subject of litigation. In a sense, strong reactions to a bill like AB 5 are to be expected— worker classification schemes strike at the heart of individuals’ ability to earn income and to receive certain protections and benefits reserved only for employees. But largely missing from the fevered debate over AB 5 has been a close examination of the bill’s place in the long history of worker classification jurisprudence, its effectiveness as reform, and its viability to accomplish its own aims. This Note attempts to do just that and concludes that California AB 5 should not serve as a model for other states seeking to address the challenges the gig economy poses to existing worker classification schemes.


Richard H. Gilliland III, California and the Terrible, Horrible, No Good, Very Bad Statutory Employee Classification Scheme, 79 Wash. & Lee L. Rev. 899 (2022).