LOS ANGELES (CN) — California's classification of so-called doorknockers and signature gatherers as employees rather than independent contractors doesn't discriminate against them based on the content of their speech, a divided Ninth Circuit panel ruled Tuesday.
The 2-1 decision rejected claims by an Oxnard, California, political action committee and a Florida provider of canvassing services that classifying doorknockers as employees violates their free speech rights because, they argued, the state makes exemptions for other door-to-door occupations such as salespeople and newspaper carriers.
"California’s classification of a worker as an employee or an independent contractor is aimed at the employment relationship— a traditional sphere of state regulation," Senior U.S. District Judge Joan Ericksen, a George W. Bush appointee who sat on the panel by designation from the District of Minnesota, wrote for the majority. "It is regulation of economic activity, not speech."
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.
"We’re disappointed with today’s decision, and plan to seek rehearing en banc," Alan Gura, an attorney representing Mobilize the Message and Moving Oxnard Forward, said in an email. "California plainly discriminates against workers who perform the same job functions based on the content of their speech. When the only difference between job classifications is the content, function, or purpose of a worker’s speech, the state regulates speech, not jobs, and it must justify that discrimination —something California hasn’t even tried to do here."
The majority, which also included U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, said under California's criteria there was an increased likelihood that doorknockers and signature gatherers would be classified as employees and that, as a result, it might be more expensive to hire these workers in the state, which in turn could make it harder for the plaintiffs to hire as many of them as they otherwise would. But, they said, this indirect impact on speech didn't amount to a violation of the First Amendment,
U.S. Circuit Judge Lawrence VanDyke, a Donald Trump appointee, dissented and said his colleagues relied on a false dichotomy between economic activity and protected expression. He agreed with the plaintiffs that the occupational classifications challenged here are defined by the messages the workers communicate. The difference between the otherwise very similar jobs of a salesperson and a political canvasser, the judge said, is the content of the message being shared with the public.
"It seems clear that direct salespeople and newspaper distributors 'canvass' in the same way doorknockers and signature gatherers do, and yet they are treated differently under AB 5 because one is selling a vacuum cleaner, while the other is
selling a political idea," VanDyke said. "This labor classification turns squarely on the 'speech’s communicative intent.'"
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