In major ruling, San Diego judge says Instacart will flunk AB 5 contractor test

From today’s San Diego Union-Tribune:

A San Diego Superior Court judge has ruled that Instacart is likely misclassifying some of its workers as contractors — when the law requires they be classified as employees — marking a notable step toward enforcement of the controversial new state law known as AB 5.

But the ruling came with a healthy dose of skepticism from the judge over the “wisdom” of the law itself.

Judge Timothy Taylor issued an injunction Feb. 18 against Instacart in San Diego Superior Court, essentially warning the San Francisco company that it’s failing to comply with the state’s labor laws. Instacart disagrees with the ruling, and plans to file an appeal, the company said in a statement Tuesday.

Instacart, which operates nationally and has a presence in San Diego, is an app that allows customers to place grocery orders online, which are then purchased and delivered by gig workers called “shoppers.” The labor law case, filed by San Diego City Attorney Mara Elliott in September, takes issue with how the grocery delivery company classifies its shoppers.

The suit alleges that Instacart shoppers do not qualify as independent contractors under a 2018 California Supreme Court decision (Dynamex Operations West, Inc. v. Superior Court). It’s the Dynamex case that spurred Assembly Bill 5 to move its way through the state legislature last year, sponsored by Assemblywoman Lorena Gonzalez (D-San Diego), and signed into law by Gov. Gavin Newsom. The law went into effect Jan. 1.

According to Judge Taylor, the law makes it clear that Instacart is in violation, calling California state policy “unapologetically pro-employee.”

“While there is room for debate on the wisdom of this policy, and while other states have chosen another course, it is noteworthy that all three branches of California have now spoken on this issue,” Taylor wrote in a court filing dated Feb. 18. “The Supreme Court announced Dynamex two years ago. The decision gave rise to a long debate in the legal press and in the Legislature. The Legislature passed AB 5 last fall. The Governor signed it. To put it in the vernacular, the handwriting is on the wall.”

Read the complete article here.