In the Wake of Dynamex, Ab5 Cleared the Path for Freelance Lawyers

• Jurisdiction: California,United States
• Citation: Vol. 26 No. 1
• Publication year: 2020
• Author: By Kristin Tyler
• topic: Business of Law,Contracts,Labor Law,Employment Law

In the Wake of Dynamex, AB5 Cleared the Path for Freelance Lawyers

By Kristin Tyler

Kristin Tyler is Co-Founder of LAWCLERK (www.lawclerk. legal), where attorneys go to hire freelance lawyers. She is also a trusts and estates lawyer, busy mom and firm believer that the practice of law can be rewarding despite its daily demands.

The gig economy is changing the way millions of people are living and working. Companies such as UberEATS, Airbnb, Fiverr, Lyft, and countless others have become an integral part of our daily lives and how we receive services like travel, housing, and, food, but also, how we manage our legal practice.

The legal community has been embracing the gig economy for decades before the phrase "gig economy" was coined and became so prevalent. Busy attorneys have turned to so-called "contract attorneys" for many years to get briefs written, documents reviewed, and issues fully researched. The more modern term for these "contract attorneys" is "freelance lawyers" but whatever you want to call them their role is clear: to provide needed support to busy attorneys to get legal work completed in an efficient manner without costly overhead of an associate on payroll. However, in light of Dynamex Operations W v. Superior Court¹ many California attorneys have reevaluated whether they can hire these freelance lawyers without legal consequence.

Dynamex is a California case from 2018 having a considerable impact on the gig economy and freelance workers across many industries. The ruling seemingly established a new framework to classify workers as employees or independent contractors.² The decision created worry across the freelance industry, including for California-based lawyers, who understandably queried whether hiring freelance lawyers was compliant with California labor laws. Some attorneys have interpreted the Dynamex holding to mean that they can no longer hire freelance lawyers to assist in drafting and preparing legal work. This is a misinterpretation of the Dynamex ruling. Further, A.B. 5 swiftly wiped out any reason for busy California attorneys to give pause about hiring freelance lawyers.³ Let's examine.

WHAT IS DYNAMEX?

The Dynamex case involved two workers suing on behalf of a class and challenging their classification as independent contractors. These individuals worked as same-day couriers for Dynamex - a nationwide same-day courier and delivery service.⁴ The lawsuit hinged upon the fact that prior to 2004, Dynamex treated its couriers as employees. After 2004, they were reclassified as independent contractors, yet still performed the same functions as when they were employees. Pretty much the only thing that had changed was a significant decline in compensation and benefits.⁵

It was up to the court to decide whether the workers should be classified as employees or independent contractors for purposes of California wage orders.⁶

What are wage orders? Wage orders impose obligations relating to the minimum wages, maximum hours, and a limited number of very basic working conditions for California employees.

In Dynamex, the court held that the workers were misclassified as independent contractors and they should be classified...