Thread by @ShengAtLaw

I've been getting a few questions on California AB5, AKA the "gig economy bill," so I thought I'd chime in because I do miss commentating on content creation and the law. As always, this is for educational purposes and not legal advice. I'm not your lawyer.

Right now, you CAN'T hire me to be your lawyer. So this is my opinion without looking for billable hours. Short answer: streamers should have nothing to worry about; however, this does have future implications we all need to be aware. Long answer to follow.

I survived the 5 so I can expand on AB5 😅

Lawyers are fond of saying: "as California does, so does the nation." This is because California makes up a HUGE portion of the American economy. So the laws this state passes usually have a ripple effect in the rest of the country.

We will see this with California's dumpster fire of a privacy bill and we will probably see this with AB 5. AB5 essentially shifts the presumption from that of an independent contractor (IC) to one of an employee.

Here's a good analysis of the bill: jdsupra.com/legalnews/ab5-…

I'm going to focus my commentary on how this could impact online content creators and this industry.

Alright, #BabyAtLaw & #MiniAtLaw are finally in bed...

Let's continue!

(Kiddie pics to make up for the interruptions 😁)

It's important to realize that a shift in presumption does NOT mean all ICs are automatically classified as an employees.

AB5 turned a CA court ruling into state law. That means a claimant doesn't need to go to court to get a judgement based on case law, they can rely on statute

This is crucial because individuals claiming they were owed employee benefits that they were denied because of IC status often do not have the funds for costly litigation. In addition, government lawyers can now sue violating companies directly.

The court ruling (in Dynamex) that is now state law requires use of a stricter "ABC Test" as the standard to determine whether a now-presumed employee is actually an IC. This is an AND test, meaning ALL 3 criteria must be met.

Source: link above

IMO, Twitch (and other content creation platforms) will likely pass this test under a strict interpretation. That means, even with the passage of AB5, I don't see streamers now being considered Twitch employees. So don't go trying to claim overtime from Twitch just yet.

Where I DO see this potentially having a major impact on streamers are those creators that are part of a major content creation parent organization (i.e. esports orgs, stream teams, etc.) that are currently classified as ICs (which I wager is the vast majority).

For such orgs based in California, I WOULD recommend consulting an experienced labor/employment law attorney to determine potential exposure. Through my work with streamers in the past, some of those orgs MAY fail the ABC test and owe their IC-creators employee benefits.

This is a good example of how other content creation companies are already starting to react to AB5, even companies that are NOT based in California.

latimes.com/business/story…