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Travel Agents and Exotic Dancers Challenge AB5

State Law on Employment Status of Independent Contractors Causes Waves

Working as an independently contracting travel agent gives Linda Kavanagh the free time to take trips, like the three weeks she and friends rode Harley Davidsons along Route 66 seen here. She and other independents want to be exempted from AB5, which seeks to separate the employees from the independent contractors. | Credit: Courtesy

A state Supreme Court ruling in 2018 is causing waves in the independent contractor world, pitting the freedom to work one’s own hours against employer exploitation of the gig economy. Even Stormy Daniels saw fit to weigh in, advocating that exotic dancers remain independent and choose when and for whom they perform. Travel agents and translators in Santa Barbara are also lobbying Sacramento to have their opinion heard.

“Here’s a picture of me from the North Shore of Kauai in 2018, and by the way, the other picture was during a Harley Davidson Route 66 three-week road trip from Chicago to Santa Monica.” Travel is Linda Kavanagh’s life. Santa Barbara forms her home base from which she roams to Kauai and Canada, while running her business as an independent travel agent. She’s concerned that independence, which allowed her to work while raising her children, might disappear under Lorena Gonzalez’s Assembly Bill 5, poised to go to the California Senate floor for a final vote.

Businesses that routinely abuse the independent contractor classification are the target of Assemblymember Gonzalez’s bill, which was written following a class action suit against Dynamex Operations West. Drivers for the same-day delivery service in the Los Angeles area had been employees until 2004, when Dynamex changed their status to independent contractor. The California Supreme Court ruled that three criteria determined a person’s independent contractor status — the ABC Test: the work is done free of control, is outside the business’s normal work, and is a customarily independent trade.

In targeting businesses in the trucking, delivery, janitorial, and construction industries, the ABC Test and Gonzalez’s bill swooped up almost all independent contractors.

“We support AB5,” said Lorena Ortiz Schneider, the owner of an interpreting and translation service in Santa Barbara. “But not in its present form. Translators should get the same exemption as doctors and lawyers.” Interpreting is an exhausting business, Ortiz Schneider said, and it’s important to be able to set your own hours. She was headed for a Spanish-English job in Santa Maria when she called. “Just as two hands don’t make you a concert pianist,” she said, “translating is a skill that takes aptitude.” For Ortiz Schneider, that includes French and Portuguese, languages not often in need of translation in Santa Barbara, and her work for a number of clients sends her across the geographically immense landscape of California.

In AB5, the San Diego assemblymember asserts that companies avoid paying into the social safety net — payroll taxes, workers’ compensation, Social Security, and unemployment and disability premiums — when they misclassify employees. The legal rumbles have been enough to concern Uber and Lyft executives, who conceded in a San Francisco Chronicle opinion piece that perhaps they should be offering their drivers benefits like paid time off or retirement planning. According to AB5’s legislative analysis, in one decade, the number of independent workers grew by 30 percent.

Exotic dancers have long been considered independent contractors. Stormy Daniels, famously a porn-star former-friend of Donald Trump’s, argued in a Los Angeles Times op-ed that hers is a sensitive occupation that requires highly personal decisions that should remain in the dancer’s hands, not an employer’s.

Steve Smith is with the California Labor Federation, which is sponsoring AB5. According to Smith, Daniels has pulled back. “She wrote her op-ed at the behest of a chain of clubs,” Smith said, “and the irony that she was their employee wasn’t lost on rank-and-file dancers.” Some of the worst exploitation happens in that industry, Smith added. “Dancers have been cheated out of wages and tips for years and years.” Some are even charged for dancing for tips, Smith said, which was the subject of a 2017 lawsuit at Santa Barbara’s Spearmint Rhino club.

Santa Barbara’s legislators are hearing from their constituents about AB5. They’ve also voted in its favor: Assemblymember Monique Limón on the Assembly floor and State Senator Hannah-Beth Jackson at the Labor Committee. The bill names exemptions for licensed insurance agents, hairdressers, investment advisors, and repo men. It’s added defining provisions for freelance writers and artists, and Gonzalez’s staff indicated updates were still coming.

Linda Kavanagh was working on her family’s farm near Toronto as she described being able to plug in while parked in her truck at the beach in Kauai. In her nearly 50 years as an agent, she’s ticketed many a client who’s been bumped from a flight. “Agents have access to airline ticketing while travelers are just trying to get online,” she said. “It’s never been about a pension or a large income,” Kavanagh said, “and I can say I’ve never regretted my job. I research the world for work every day.”

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