Issue link: https://digital.copcomm.com/i/1189512
12 • THE ARTISAN WINTER 2020 GUILD NEWS The Dynamex Decision and AB 5 What is Dynamex? In the Dynamex CA Supreme Court case, the Court ruled unanimously that companies must use a simple test, already adopted by other states, to determine if a worker is truly an independent contractor instead of an employee. The ruling removes uncertainty for businesses and ensures that com- panies aren't cheating workers out of basic protections like a minimum wage, unemployment insurance and workers' compensation that they deserve as employees. What is AB 5? Worker advocates have joined with Assemblymember Lorena Gonzalez Fletcher to enshrine the Dynamex rul- ing into state law and close loopholes that allow some big corporations to continue cheating. The bill, AB 5, clarifies the decision and protects both employees and those who are actually independent contractors. Why is AB 5 needed? By enshrining the Dynamex decision in state law, we can create one clear definition of employment that is easy to understand and follow. In addition, this bill will clarify what employment rela- tionships are not covered by the decision, providing certain- ty to industries that are unsure of the case's implications. The reality is that most businesses do not misclassify workers and have been forced to compete with this illegal model. With the Dynamex decision and the clarity from AB 5, we can level the playing field for companies that fol- low the law and raise standards for millions of California workers. If someone wants to be an independent contractor, shouldn't they have that choice? Anyone who wants to go into business for themselves as an independent contractor will continue to have that choice. This bill in no way limits legitimate independent contrac- tors. There's always going to be a place in our economy for those who want to be their own boss and contract their services to businesses that follow the law. What we need to stop is the practice of some unscrupulous employers calling employees "independent" just so they can cut corners on costs. When businesses flout the law with these schemes, we all pay the price. Good businesses struggle to compete. Workers are cheated out of pay and basic protections and our state loses billions in revenue that supports our schools, public safety and roads. That's why Dynamex and AB 5 are so important. How does this affect an IATSE Local 706 member? (excerpted from the Basic Agreement) XXXIV. Loan-outs The Producer may utilize the services of an employee on a loan-out basis for work covered by the Basic Agreement, the Videotape Agreement and the West Coast Studio Local Agreements (Applicable Agreements) under the following conditions: (a) All seniority rights and terms of the Industry Experience Roster of the Basic Agreement and Paragraph 68 of the Local Agreements shall be fully applicable to the use of the services of the employee on loan-out. (b) With respect to compensation and conditions under the Applicable Agreements, the Producer shall provide at least the minimum compensation and conditions under the Applicable Agreements to the loan-out company, but shall not be responsible for payment by the loan-out company to its employee. (c) Any claims or disputes between the employee on loan-out and the Producer regarding salaries or terms and conditions of employment that would be covered by the grievance and arbitration provisions of the Applicable Agreements if the employee had been hired directly by the Producer shall be subject to such grievance and arbitra- tion provisions with the right of the IATSE and the Local Unions to file grievances on behalf of employee on loan-out. (d) With respect to pension and health and contract services administration, during such time as an employee is engaged by a borrowing Producer through the employee's loan-out company, the borrowing Producer shall make pension and health and CSATF contributions directly to the Motion Picture Industry Health Plan and the Motion Picture Industry Pension Plan on behalf of the employee so employed based upon hours worked or guaranteed, which- ever is greater. Contributions may not be made by loan-out companies. (e) A Producer who borrows an employee from a loan- out company under this section, whose employment if directly by the Producer would have been covered by the Applicable Agreements, shall, within ten (10) days after the execution of the agreement covering the loan-out transac- tion, give the IATSE a written notice of the transaction including the names of the loan-out company and the employee loaned out to the Producer. An inadvertent failure by the Producer to give such notice shall not be deemed to be a breach of the Applicable Agreements. "Loan-out com- pany" for purposes of this Article is defined as a company controlled by the loaned out employee, who is the only employee of the loan-out company who performs work covered by the Applicable Agreements. This article is informational only, it is not an official statement of any entity and is only meant as education but is not legally binding. (Excerpted from the California Labor Federation and the IATSE Basic Agreement.)