Below is an excerpt from a recent NFIB article titled ‘California Legislature Codifies Dynamex
Decision.’
The NFIB is an advocate for small businesses. Leading up to the recent implementation of AB-5 (essentially intended to force Uber to classify its contracted drivers as employees), NFIB sent numerous communications urging members to ‘vote no’ over and over. The reasoning was that AB-5 was bad for small business and would catastrophically and disproportionately hurt small business owners because it was too broad and sweeping. If you read the excerpt below, now that the bill has passed, the NFIB’s stance is that the bill was a ‘missed opportunity’ by the legislature to create a more comprehensive plan.
Except, as an advocacy group, they did not fight for that result during the battle.
All efforts and communiques were spent in total opposition…just block the bill.
Uber is not a small business, and whether by design or by accident, Uber is/was taking advantage of loopholes in independent contractor law in ways that had never been addressed before.
Workers and advocacy groups made it fairly clear the fight to address this was coming, and they weren’t going to rest until it ended in a result that satisfied their grievances. Instead of recognizing this and working to ensure the inevitable legislation did not hurt small businesses, NFIB chose to immediately ‘pick a side’ and dig in on its stance. NFIB should have been fighting for a better version of the bill from the very beginning, but instead, put all efforts into opposing the bill in its entirety, working directly towards Uber’s goals instead of helping to ensure that what was a fairly inevitable decision wouldn’t hurt their actual constituency.
Polarized advocacy is inefficient and ineffective. If all you do is dig your heels in and refuse to say yes to anything coming out of your opponents’ mouths, you’re not going to accomplish anything unless your opponent accomplishes absolutely nothing. If any legal argument results in accomplishing absolutely nothing, then both our government and our advocacy groups have done us a disservice by wasting our time and money.
Making a positive change requires saying yes.
We need more advocacy groups to fight for comprehensive change, we need more elected officials to fight for citizens’ needs first and party ideals second, and we need everyone to resist polarization.
If you’re a small business owner and concerned as to whether AB-5 will affect your relationship
with frequently engaged contractors, or you are a contractor concerned you may lose clients
and/or worried about potential liability, I urge you to contact legal counsel before the end of the
year to prepare a risk-management plan. Your local city hall and chamber of commerce should
have readily available information about small business groups like the SBA and SBDA that can
help you get qualified legal advice from knowledgeable local counsel. And always remember,
‘Someone has to complain first.’
THE EXCERPT:
“I counted 37 occupations which received safe shelter from complying with the State Supreme
Court’s so-called ABC test,” said NFIB’s California State Director John Kabateck. “This is a sad
day for good governance.
“AB 5 will forever be a missed opportunity to ameliorate a bad court decision by establishing a
uniform law for all to follow,” said Kabateck. “Prior to the court’s Dynamex decision, our state
was served quite capably by the Borello decision for the past 30 years.”
One of the main issues with the Dynamex decision and resulting legislation is that the new test
allows for zero flexibility for who qualifies as an independent contractor. This is a major
problem for small businesses, particularly those just starting out, who want to hire workers that
value a degree of independence.
“Industry-by-industry exemptions from Dynamex don’t work for small businesses,” said NFIB
Policy Director Shawn Lewis. “Small businesses represent a vast diversity of industries, and the
Legislature should not be in the business of picking winners and losers. The undeniable truth is
the current status of the law is unworkable for far too many small businesses and entrepreneurs
in a state as diverse as California.”
You can find the source here.
C.L. Denise
Small business owner & advocate
