Is the “Gig” Up? Another Victory for AB5 Challengers


In the 2020 election, California Proposition 22, the App-Based Drivers as Contractors and Labor Policies Initiative, went to voters and passed with just over 56% of the vote. This voter Initiative provided app-based gig companies a reprieve from Assembly Bill 5, permitting companies to continue classifying their workers as independent contractors.

On August 20, 2021, Frank Roesch, Alameda County Superior Court Judge, ruled that two sections of Proposition 22 were unconstitutional under California’s state constitution and that the proposition as a whole was unenforceable. Judge Roesch found that proposition unconstitutionally limited the power of the legislature and that it violated the state’s single-subject rule. This decision was appealed.

On March 13, 2023, a three-judge panel overturned Judge Roesch’s interpretation of the proposition’s constitutionality with a 2/3 decision. They ruled that the prior provisions previously found to be unconstitutional did not run afoul of the state constitution. This decision is seen as a win for gig-based employers who had used the independent contractor worker model for decades prior to the passage of AB5. This decision will likely be appealed. So, the fight, likely, continues.

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