|California's ABC test does
violate the First Amendment
Mobilize the Message v. Bonta (9th
Sent to Custom
Alerts™ subscribers on 10/12/2022
The 9th Circuit (on
a 2-1 vote) affirmed
the denial of plaintiffs' motion for a preliminary injunction
which sought to restrain the California Attorney General from
applying California’s “ABC test,” codified in California Labor
Code § 2775(b)(1) to classify plaintiffs’ doorknockers and
signature gatherers as either employees or independent
For certain purposes, California classifies
“a person providing labor or services for remuneration” as an
employee unless the hiring entity satisfies the “ABC test” adopted
in Dynamex Operations West, Inc. v. Superior Court, 416
P.3d 1 (Cal. 2018). Cal. Lab. Code § 2775(b)(1).
2775 and Dynamex do not apply to several occupations. For
workers in the exempt occupations, the multifactor test of
S.G. Borello & Sons, Inc. v. Department of Industrial Relations,
769 P.2d 399 (Cal. 1989), governs in determining whether the
worker is an employee or an independent contractor. Although
Dynamex was initially limited to wage orders, with
Borello applying outside that context, the California
legislature codified the ABC test and expanded its applicability
through the enactment of Assembly Bill No. 5 (AB 5) in 2019.
Plaintiffs hire doorknockers and signature gatherers, which
they purport to hire as independent contractors. Plaintiffs
claimed that the California law violates the First Amendment
because it discriminates against speech based on its content by
classifying their doorknockers and signature gatherers as
employees or independent contractors under the ABC test while
classifying direct sales salespersons, newspaper distributors, and
newspaper carriers under Borello.
accepted, for present purposes, plaintiffs’ assertion that
application of the ABC test to their doorknockers and signature
gatherers increased the likelihood that they will be classified as
employees. The court also accepted that classification of their
doorknockers and signature gatherers as employees might impose
greater costs on plaintiffs than if these individuals had been
classified as independent contractors, and that as a result they
might not retain as many doorknockers and signature gatherers.
Such an indirect impact on speech, however, does not violate
the First Amendment. Section 2783 does not target certain types of
speech. Unless an occupational exemption exists, the ABC test
applies across California’s economy. Thus, plaintiffs were not
unfairly burdened by application of the ABC test to their
doorknockers and signature gatherers.
The court also
rejected plaintiffs’ assertion that statutory exemptions for
direct sales salespersons, newspaper distributors, and newspaper
carriers constituted content-based discrimination. The exemptions
do not depend on the communicative content, if any, conveyed by
the workers but rather on the workers’ occupations. Although
determination of whether an individual is, for example, a direct
sales salesperson might require some attention to the individual’s
speech, the US Supreme Court has rejected the view that any
examination of speech or expression inherently triggers heightened
First Amendment concern.
Because plaintiffs had not
established a colorable claim that their First Amendment rights
had been infringed, or were threatened with infringement, they had
not demonstrated a likelihood of success on the merits. The
district court did not abuse its discretion in denying a
Dissenting, Judge VanDyke stated
he would reverse the denial of a preliminary injunction. The
governmental burdens challenged here turned primarily on what is
said, not labor distinctions unrelated to speech. Regardless of
whether such content-based distinctions hide under the veneer of a
labor classification, the First Amendment’s protections remain the
same. Plaintiffs face cost-prohibitive expenses because of the
content of the speech in which they engage.
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