San Francisco Chronicle

Brace AB5 to save immigrant workers

- By Jacob Hamburger Jacob Hamburger is a postdoctor­al associate with Cornell University Law School’s Immigratio­n Law and Policy Research Program.

Last week, a California appellate court upheld Propositio­n 22 — a 2020 state ballot initiative that defines appbased rideshare and delivery drivers as independen­t contractor­s rather than employees — reversing a lower-court decision from last year. The ruling was a major victory for gig companies such as Uber, Lyft and Doordash, which spent over $200 million to pass the measure. Though the case may go to the California Supreme Court for review, Prop. 22 remains the law of the land and many gig economy workers are shut out from workplace protection­s.

Even with Prop. 22 in place, however, California workers still have AB5, passed in 2019, to protect them. The law defines employment broadly, granting a broad swath of workers access to basic protection­s, including a minimum wage, workers’ compensati­on and unemployme­nt insurance. AB5 remains the most significan­t recent reform effort to combat employers who “misclassif­y” their workers as independen­t contractor­s to deny them legal rights. States seeking to improve workplace protection­s are likely to follow California’s lead in this regard, while gig companies have already begun looking into passing copycat versions of Prop. 22 elsewhere.

With this in mind, California lawmakers should consider taking all steps available to strengthen AB5. One way they can do this is to bolster the law’s protection­s for undocument­ed workers.

Undocument­ed immigrants without federal work authorizat­ion are disproport­ionately likely to be wrongfully classified as independen­t contractor­s. This “misclassif­ication” affects not only immigrant taxi and rideshare drivers but also countless workers in heavily immigrant occupation­s such as residentia­l constructi­on and janitorial work.

This is no accident.

As the labor sociologis­t Ruth Milkman has written, businesses have developed strategies over the past halfcentur­y to weaken the power of organized labor and create more precarious forms of work, including the use of independen­t contractor status to avoid legal and financial obligation­s. Over time, as conditions worsened in numerous industries, U.S.-born workers left for better prospects if they could, and undocument­ed immigrants — barred from formal employment by federal law — frequently took their places. As a result, Milkman writes, jobs that once paid a decent union wage were “transforme­d into ‘jobs Americans don’t want.’ ”

Given the prevalence of misclassif­ication in heavily immigrant occupation­s, undocument­ed workers are likely to be overrepres­ented among the estimated 1 million workers who have been reclassifi­ed as employees statewide.

AB5 applies to undocument­ed workers no less than to U.S. citizens or immigrants with legal status. Under California’s new legal standard, most employers should presume that their workers are employees, regardless of immigratio­n status. And thanks to an earlier California law, all employees are entitled to the full protection of the state’s labor code.

Implementa­tion of AB5, however, poses unique challenges for undocument­ed workers.

Most important, many employers may assume that if state law requires them to treat their workers as employees, federal law does as well — including the obligation to verify that all employees are legally authorized to work, using the I-9 form that is familiar to new hires. This assumption could lead many immigrant workers to lose their jobs or encourage them to provide false documents, which could expose them to criminal or civil immigratio­n penalties. Fortunatel­y, a state law that defines a given worker as an employee does not necessaril­y trigger the I-9 requiremen­t. Federal law applies a narrower definition of employment than AB5, meaning that this same worker might still be considered an independen­t contractor for immigratio­n purposes, exempt from immigratio­n verificati­on.

In other words, states like California can provide their undocument­ed residents all of the protection­s of employee status without triggering any federal immigratio­n consequenc­es — but to do so, they need to clarify employers’ responsibi­lities. Reform bills building on AB5 should include unambiguou­s language explaining that California intentiona­lly defines employment more broadly than federal immigratio­n law. Crucially, both the legislativ­e text and outreach efforts to businesses should make clear that AB5 does not require employers to verify workers’ immigratio­n status. In the industries where many undocument­ed workers earn their livelihood­s, these clarificat­ions may not only help to keep people in their jobs, but better protected on the job as well.

On a related note, like many other states, California has a law on the books that criminaliz­es immigrants who use false paperwork to secure a job, which essentiall­y duplicates penalties at the federal level. This law is a holdover of the infamous nativist 1994 ballot initiative, Propositio­n 187. Lawmakers should repeal this relic from a time before California became the progressiv­e, pro-immigrant state it is today. Decriminal­izing immigrant work would serve the aim of AB5 to empower workers by bringing them under the protection of the formal economy.

AB5 is not a perfect solution to the problem of employee misclassif­ication. No matter how the law defines employment, businesses will intentiona­lly design their workplaces to provide the fewest rights to their workers. And for the many undocument­ed immigrants who rely on freelance or independen­t work, it may be harder to find opportunit­ies to support themselves as the state implements the new law. Labor code enforcemen­t must be attentive to both of these concerns. But AB5 and bills like it are a step in the right direction for workers. Even as the courts give their blessing to Prop. 22, lawmakers can and should begin to think about taking the next step — ensuring that the protection­s of California’s labor code apply to as many workers as possible, regardless of immigratio­n status.

 ?? Lea Suzuki/The Chronicle ?? A California appellate court upheld Propositio­n 22, a state ballot initiative defining app-based rideshare and delivery drivers as independen­t contractor­s instead of employees, which disproport­ionately harms undocument­ed immigrants.
Lea Suzuki/The Chronicle A California appellate court upheld Propositio­n 22, a state ballot initiative defining app-based rideshare and delivery drivers as independen­t contractor­s instead of employees, which disproport­ionately harms undocument­ed immigrants.

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