Olson v. State of Cal., 62 F.4th 1206 (9th Cir. 2023)

In the latest in a string of defeats for the State of California, a Ninth Circuit panel unanimously held that AB 5 (the anti-independent contractor law) may violate the equal protection rights of independent contractor drivers and the gig companies that retain them.  The panel found that the plaintiffs plausibly alleged that AB 5 had unfairly targeted drivers and companies such as Uber and Lyft.  Specifically, the panel noted that a legislative desire to harm a politically unpopular group is not a legitimate governmental interest even under the “fairly forgiving” rational basis test for judicial review.  For example, the panel cited multiple public statements of AB 5’s sponsor (former Assemblywoman and once and future labor leader Lorena Gonzalez) who singled out and publicly disparaged plaintiffs by name, which was evidence that the legislation’s primary impetus may have been animus toward them.  Additionally, the plaintiffs plausibly alleged that they were singled out in that multiple companies and workers were able to lobby for and obtain carve outs from the strict provisions of the law, which was “starkly inconsistent” with AB 5’s stated purpose of protecting “workers’ basic rights.”