(CN) — An Oxnard, California, political action committee and a Florida provider of canvassing services went before the Ninth Circuit Court of Appeals to argue that a state law that qualifies "doorknockers" and signature gatherers as employees rather than independent contractors violates their free speech rights.
Mobilize the Message and Starr Coalition for Moving Oxnard Forward claim California law discriminates against canvassers based on the content of their speech because salespeople going door to door and newspaper carriers are exempt from the law's criteria and can qualify as independent contractors. But canvassers soliciting signatures for a ballot measure or urging people to vote for a candidate are considered employees under the law.
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, expressed some sympathy with Mobilize the Message at the hearing Monday in San Francisco. Whereas the newspaper industry and the direct sales lobby may have been successful in getting exemptions from the California Legislature for their workers, it was unlikely that advocates of direct democracy would have been able to get such an exemption because, according to the judge, they are the biggest enemy of the Legislature.
"There's no way they're going to get an exemption," VanDyke said.
The case is one of a number of challenges to Assembly Bill 5, enacted in 2019 to codify the criteria under which a worker can be treated as an independent contractor rather than an employee. The state law was prompted by the rise of the gig economy that moved millions of workers into freelance delivery and driving jobs without employee benefits such as unemployment insurance.
AB 5 allows for exceptions, for example for workers with a professional license or those who have the bargaining power to set their own rates. It also makes exceptions for direct sales persons and newspaper carriers. Those exemptions, according to the plaintiffs, are evidence that the qualification of doorknockers as employees is based on the content of their speech and thus a violation of the First Amendment.
U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, expressed skepticism that the distinction between commercial door-to-door salespeople and political canvassers under the law had to do with the nature of their speech.
"It seems to me that it's not about the content of your speech," Hurwitz said to Mobilize the Message's attorney Alan Gura. "It's about the way you conduct your business."
Mobilize the Message said it hires doorknockers and signature gatherers on an independent contractor basis and doesn't pay hourly wages. Rather, doorknockers get paid for reaching milestones, according to the company. They can set their own hours, breaks and schedules, as long as they work during the times of day when people are most likely at home.
"Considering plaintiffs’ lack of control over their doorknockers and signature gatherers, and the degree of independent judgment that these individuals exercised in generating the performance milestones for which plaintiffs paid them, plaintiffs’ doorknockers and signature gatherers have always been essentially independent direct sales salespeople—notwithstanding that their advocacy is political rather than commercial," according to the appeal.
In 2021, U.S. District Judge Virginia Phillips denied Mobilize the Message and the Oxnard political action committee's bid for a preliminary injunction, finding they were unlikely to succeed on the merits of their lawsuit. The distinction between how the law treats a cosmetics salesperson and a campaign signature gatherers was based on the worker’s occupation, Phillips said.
"Plaintiffs’ argument that the content of what a worker says will determine whether an AB 5 exemption applies in this context lacks merit," Phillips said. "The more sensible interpretation is that the distinctions hinge on the worker’s industry regardless of speech."
The judge was also unconvinced by the harm claimed by Mobilized the Message of not being able to operate in California because of the state law, noting the company waited almost two years after the law was passed to sue.
U.S. District Judge Joan Ericksen, sitting by designation from the District of Minnesota, rounded out the panel. The judges did not indicate how or when they would rule.
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