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Assembly Bill 5 hinders local independent contractors

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Sarah Levanway has been a sign language interpreter for more than 15 years. She provides her service primarily in medical and educational settings.

"It is a really vulnerable thing because when you think about someone needing to talk to their doctor about possibly having a sexually transmitted infection or just asking routine questions, I realized if the person wasn't deaf, I wouldn't be here," Levanway said.

Her job gives her a sense of fulfillment because she's able to bridge an important gap of communication in a medical environment.

"If the patient does not understand what the doctor is saying, they cannot give consent for a medical procedure or treatment," she said. "That's a big part of my job, making sure that the patient that I'm working with is understanding what's happening."

Levanway is able to provide her interpreter skills in both environments because she's employed by Cal Poly part time, three days out of the workweek and performs work as an independent contractor during the other two days.

But her livelihood was recently put in jeopardy along with the livelihoods of other independent contractors throughout California with the implementation of Assembly Bill 5 at the beginning of the year.

The bill authored by Assemblymember Lorena Gonzalez (D-San Diego) was meant to reduce worker misclassification and make it harder for companies to classify an employee as an independent contractor. Misclassification of employees was previously enabling employers to avoid obligations such as payment of payroll taxes, premiums for workers' compensation, Social Security, unemployment, and disability insurance.

The bill passed in September 2019 and went into effect in January with immediate backlash from independent contractors in varying fields of work.

Under AB 5, a hiring entity must prove the independent contractor is: free from the control that the hiring entity typically exercises over its employees; performs work that is not in the usual course of the hiring entity's business; and routinely does work in an independently established business, trade, or occupation of the same nature as the work performed.

Independent contractors that were exempted from the rules include: licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fisherman, workers providing licensed barber or cosmetology services, and others performing work under contract for professional services with another business entity, or pursuant to a subcontract in the construction industry.

Having the ability to be employed part time and as an independent contractor works for Levanway because she suffers from chronic fatigue and other medical issues. When Levanway has a good week, she takes on several contracted jobs on her days off from Cal Poly, and when she isn't feeling well, she doesn't.

The beauty of being an independent contractor, she said, allows her to earn a good living working less than 40 hours a week.

That freedom could have been diminished had Levanway not been warned to get into compliance with AB 5. One of the agencies that contracted Levanway reached out to all their independent contractors via email about seven months before the bill was scheduled to take effect. The message was clear, AB 5 was underway, and the agency wanted to make sure its workers were prepared.

Levanway shared that the email from the agency said, "We want you to still be able to work with us" so please make sure you get what you need to be AB 5 compliant.

"I must have gotten an email from them at least once a month. If it weren't for them, I would be having some problems," Levanway said.

With their support and constant outreach, Levanway said she got her business license, formed an LLC, and opened a separate bank account for her business. It took her months and a lot of money to get the right documentation in place for the two agencies she works with in California—the other three contracting agencies are out-of-state.

For now, she's safe from the impacts of the bill, but she said that other independent contractors might not have the amount of time and energy that she spent to get compliant with the bill. More importantly still, Levanway said, is that the bill affects the local deaf community.

"Deaf people locally have difficulty getting their doctors' offices to be able to find an interpreter so that they can go to their medical appointment. It's already an underserved population," she said.

There isn't any data on the demographics of the deaf and hard of hearing community in San Luis Obispo County, but Levanway said it's small and the number of interpreters is even smaller.

On sloaccessforall.org—a website that provides resources and advocacy for locals with disabilities—there are only six sign language interpreters listed.

There are current measures being introduced to amend, modify, clarify, or possibly repeal AB 5—but the time frame to implement change is uncertain.

Assemblyman Jordan Cunningham (R-San Luis Obispo) told New Times his constituents have had uniformly negative comments about the bill.

"I think the whole thing was a very, very avoidable mistake, and that's probably the most generous thing I can say about it," said Cunningham, who didn't vote in favor of the bill.

He said he's heard from disgruntled business owners in the agriculture industry who sometimes use independently contracted truckers to rush orders of produce to be able to put their product on the market. If a trucker doesn't have the proper documentation to prove his independent contractor status, the employer can't use his services.

The new law, he said, puts restrictions on people's freedom to make a living, settle their own hours, and work the schedules they want to work.

"Essentially, it's the story of Sacramento and certain groups that had powerful lobbies that were able to carve themselves out of the scope of the bill," he said. "But the people that did not are essentially having their freedom restricted."

To Cunningham, the bill isn't fair to independent contractors across the board.

"In our country people have always enjoyed the freedom to strike out work arrangements that make sense for them and for their families. And have the flexibility that they need to be able to balance work and life," Cunningham said. "And this bill is an arrow at the heart of that fundamental freedom that we have enjoyed as Americans." Δ

Staff Writer Karen Garcia can be reached at kgarcia@newtimesslo.com.

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