Don Rogers: How not to pass a law

Don Rogers

I wonder if the legislative bomb dropped Tuesday night on the gig economy will blow up California’s Democratic supermajority in the end.

How ironic would that be? And so richly deserved.

Nudging awful Uber and Lyft in the right direction is one thing. Doubling down on the state Supreme Court’s mistake in discerning contractors from employees is another. Upending the whole service economy is just, well, dumb.

This might be Monty Python funny if the unintended consequences weren’t so dire. Some businesses the judges and politicians didn’t mean to attack in their mania to punish Uber will close or leave the state. Others will trim their workforces, raise prices while providing lesser products and services. The race to autonomous robots and the like will speed up. The very people the legislation seeks to help will instead be harmed.

As legislation goes, this ranks right there with the dumbest, however well intentioned.

For the rest of us, it only starts with Uber and other ride-share services becoming pricey, rare and difficult as taxis. You might have noticed Uber’s layoffs the morning after, 435 people, already putting the lie to advocates’ promises of more pay and opportunity and some sort of Shangri-La for workers.

The saga began in earnest last year when the state Supreme Court rewrote a standard that had long worked and which a courier service called Dynamex had violated according to existing law. The company in 2004 switched drivers from employees to contractors but continued to exercise control as if they still were employees.

The justices in their wisdom took matters a bit further, apparently in an attempt to settle perceived injustices, and introduced an “ABC” test in which B is almost impossible to overcome. That is, a contractor can’t be used to provide a service or product in line with the central work of the business. Which, of course, is absurd. At least in real life.

It gets funnier. Of course, the courts are supposed to interpret — not create — laws and standards. That’s the lawmakers’ job. So in a reverse of democracy as we usually know it, the state Legislature raced to cover up the court’s mistake and codify it. That is, double down.

The state court making up a new test on the fly was dumb, but a confused 9th Circuit Court in May made the ruling retroactive to four years before the ABC test existed and applied the standard federally. Then the circuit court justices changed their minds slightly in July and sent the question of retroactivity back to the state’s high court. In any case, this likely will wind up in the U.S. Supreme Court soon enough.

I kind of agree Uber and those others are awful as businesses, though I would take Uber over a taxi anytime. So in fact do all the Democratic candidates for president, by the way, even as they declare their support for legislation they clearly don’t understand.

Is that funny? Or just sad and dumb?

I take it all as proof even our best and brightest can make the dumbest mistakes.

The politicians see votes. The unions see fresh recruits, as if the modern version of downtrodden coal miners of yore. Good luck with that.

The giant gigs see a statewide referendum playing on the specter of going back to those horribly expensive and dirty taxis, driven by unionized employees. I feel for the taxi companies until I have to pay their fares.

It’s a fascinating tilt. Silicon Valley is the big engine for California’s economy, and supports the Democratic machine now chewing on the hand that feeds. Absent the tech industry, our state’s economy is becoming less robust, thanks in part to dumb decisions like this one.

Perhaps the legislation signals that hubris finally has gotten the best of a supermajority I’ve come to think has lost its way. Not to go all State of Jefferson here.

The politicians and judges didn’t think this through, obviously. The long list of exemptions to the bill offers rather damning evidence of their thoughtlessness.

The way the legislation stands, virtually all contractors must be reclassified as employees — except for jobs that made the list of exemptions. Those range from the usual lawyers, doctors and CPAs to barbers, commercial fishermen and travel agents in a hodge-podge fashion.

Newspaper carriers might be exempt for a year after the law takes hold Jan. 1 if the Legislature agrees in a separate bill. Freelance journalists, weirdly, are exempted for up to 35 pieces of work a year for a company and then must be considered employees. But grant writers have no such limit.

The result is legal swiss cheese. If you don’t make the arbitrary list, then chaos ensues, and plenty of jobs didn’t make the list.

As legislation goes, this ranks right there with the dumbest, however well intentioned, a steamroller for a scalpel’s work.

How else do you characterize a dumb mistake doubled down into a law that will harm the people it intends to help while causing a party’s greatest supporters to think twice as we all pay more for less service, too many of us losing our businesses and, yes, employment?

Particularly rich was Gov. Newsom making his case in The Sacramento Bee for why he’ll sign the bill into law without hesitation. Talk about kicking the hometown paper that for now is still able to provide him the soap box. This law could well prove existential for them and others.

If all that weren’t enough, the intended target of the legislation, Uber, announced Wednesday they would not comply. Maybe it is Monty Python funny.

Don Rogers is the publisher of the Sierra Sun and The Union, based in Grass Valley. He can be reached at or 530-477-4299.

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