Dear Mr. Shapiro,
This message is in response to the piece you wrote and published in your news outlet the Milpitas Beat–“Open letter to California State Assemblywoman Lorena Gonzalez: Repeal AB5 right this second.”
All Californians are trying to recover from an ongoing, unprecedented public health crisis that shutdown our economy. For most working Californians, what provided a safety net during these unimaginably difficult times were the job protections and benefits that are guaranteed by employment status. Sick leave, Family leave, state disability insurance and unemployment insurance—all of these programs are made possible by the contributions employers and employees make through their payroll.
When employers misclassify their workers as independent contractors, it’s taxpayers who are left holding the bag when those workers get injured on the job or are without work. California was the first state this year forced to borrow money from the federal government to continue to pay for UI payments through this crisis. That means, when that loan becomes due, law-abiding businesses will have to pay even more per employee in order to stabilize the fund again. Meanwhile, misclassifying “gig companies” continue to flout the law and refuse to contribute to the UI fund on behalf of their workers. Law abiding small businesses will be forced to pick up their tab if we let these billion- dollar corporations off the hook.
However, as you rightfully admit in your piece, misclassification is a “routine” issue. It is so routine, in fact, after decades of dealing with misclassification cases, the California Supreme Court in 2018 said enough was enough. The Court acted in a bipartisan and unanimous case known as Dynamex to create an employment standard known as the ABC test. Assembly Bill 5 is the codification of this decision.
In your open letter, you make the claim that this law “was devised to crack down on the supposed misclassification of drivers for companies like Lyft, Uber, and DoorDash”. The decision and AB 5 was intended to address misclassification that has plagued our economy for decades. There is nothing “supposed” about whether these companies are misclassifying their drivers. By all measures, drivers are central to these corporations’ core business models and are therefore their employees. AB 5 was never devised only in response to gig companies’ practice of widespread misclassification. AB 5 is a direct response to the Dynamex decision, which broadly affected all industries operating in California.
AB 5 narrowed the Dynamex decision’s impact; it did not broaden the decision. The law created more clarity for the business community, and we will continue to ensure it works for all responsible employers. What we will not stand for are industries with a history of misclassification to continue putting law-abiding businesses at a competitive disadvantage and writing themselves out of the rules.
Thank you for allowing me the opportunity to respond,
Lorena
(Assemblywoman Lorena Gonzalez)
Assemblywoman Lorena Gonzalez, and colleagues with a duty of care please utilize similar vigor to reduce tax payer burdens implemented by Medi-Cal and other forms of state subsidies paid out in a massive fraud to illegal immigrants. Illegal immigrants are in fact the incentivised paid beneficiaries of a land and expand practice with the greatest intention of deriving the maximum benefit at the legitimate tax payers expense. Why? Not because in general they are bad people – some are for sure and some are not. However, it’s because they can.
In addition, Illegal immigrants are typically the ones working as mis-classified employees, avoiding taxes, avoiding paying into any social contracts, creating tremendous impact on infrastructure and services of all types which are funded by and intended for the tax payers use and protection.
Such willful negligence by the State of California legislative bodies in fact damages the public/private trust. The non-performance of duty of care by legislatures such as yourself and your colleagues with the ongoing unfair subsidization of illegal immigration is counter-productive and hypocritical of the intention and function of AB 5.
If you truly believe in the righteousness of AB 5, then you must pursue all underlying causation and needs which have created a large class of under-educated, and under-protected workers which compete in an unregulated manner with regulated entities. This is evidenced by the plethora of illegal activities in the unskilled services industries with code-violations of all manner. No licenses, no insurance, illegal employment, non-compliance with safety standards, and regulations which lead to more expenses can more cost redistribution to legitimate concerns.
The willful subsidization of illegal immigration and re-distribution of legal funds to illegal non-constituents creates a draw for such persons to illegally immigrate from poor countries where they should instead improve their situation in which such opportunity gets lost, as the pathway of least resistance is to just immigrate.
Illegal immigration creates an unregulated class of service providers with unsafe and below market operating costs over legitimate businesses which causes unnatural stress and pressure including low wages versus free-markets. This is evident and cannot be legitimately disputed and is the result of subsidies and fraud associated to illegal immigration. This simply alters/pollutes/disrupts the natural free-market of supply and demand.
The State of California’s legislative and regulatory bodies are in fact encouraging such fraud and creating a negative feedback loops with interested parties even profiting from the resulting illegal immigration. I don’t believe professional service providers work Pro Bono, instead they tap into subsidies for this class to enable and empower more, again at the legitimate taxpayer expense.
Just look at our sad public schools, degraded infrastructure, atrocious rates of homelessness and try not recognize the glaringly obvious causation. Which is of course simply not doing the right thing which is protecting and encouraging lawful and legitimate free-enterprise who instead has to compete with a low cost unregulated illegal class that subsidized with their tax dollars.
Yours and your colleagues job is to promote the economic well being of the state in order to create value and lively-hood improvements, and to vigorously protect your legitimate constituency and law abiding entities from illegal activities, persons, and entities which degrade such value and prevent such improvements. This is your duty of care.
I’m tired of the passive disregard to the protection of legitimate constituency and entities of California. These values, and the non-activist approach for the duty of care to grow our state’s economic security is negligent. Until California is #1 in education, and #1 in business development and value creation, and #1 in quality of life you and your colleagues have a lot of work to do and seemingly willfully avoid this function and these goals.
Instead, California is a haven for illegal immigration whom quickly take advantage of systemic problems with robust vigor. I’ve always approached issues as part of the solution, or part of the problem. Creating vectors for crime is not creating value.
I recently visited Los Angles and was truly sad from the homelessness and despair there- which leads to crime and all sorts of expensive problems. You want more of it? Keep subsidizing it – until when? There’s nothing left, and business don’t want to operate in California?
You want AB 5 to be fair and valid – aggressively pursue the unregulated businesses and service providers by removing their access to the market, access to infrastructure, and access to tax payer funded benefits. Everyone needs to follow the law. Illegal immigrants can not get a pass. That is fraud.
Assemblywoman Gonzalez is a bald faced liar. AB5 was 100% pushed by labor unions as they knew the Dynamex decision would be narrowed judicially. Unfortunately, Dynamex and AB5 served to vastly widen the legal definition of who were employees and who were contract (1099) workers, and while there was need to remedy some issues which did exist, Dynamex and AB5 have cast a much broader net and making it impossible for people who CHOSE to be self-employed as contract workers, people such as independent musicians, film makers, script writers, truck drivers, consultants for all manner of fields, including but not limited to environmental consultants, financial consultants, HR policy consultants, Not to mention people who CHOSE to be “gig economy” independent contractors, etc. All of these people, and many more are no longer able to pursue their version of the American dream. All so Madame Assemblywoman could receive contributions from labor unions so they might corral independent contractors into an employee class under individual corporations; thus making it easier for labor unions to organize these places of employment and grow union membership.
That’s not a surprising argument but she get’s the basic facts wrong. AB5 did broaden the application of the Test by extending it past work order #9 that covered only select employers. The issue really is why an ABC test? Wasn’t the Borrello factors sufficient? Or why not an Arizona type test where the agreement to work has to include specific IC language. The ABC test was specifically proposed and adopted by unions against management because it severally restricts working conditions. The fallacy is Gonzales and others thinks it will be a job for job swap when in reality the work done by ICs will be limited severally with no employment to follow. This will hurt minorities, those that can’t work normal business hours, and those that value doing other things than devoted to working. We’ve already seen the negative consequences of AB5 on limiting employment opportunities for all Californians. If people are not working they are not contributing to these social safety nets. That’s the problem here.