Confusing grey areas such as this are what happens when blanket laws like AB5 are passed in an effort to punish certain companies, in this case Uber and Lyft, without much thought given to the possible consequences. In the case of AB5, there have been quite a few, since the law drastically restricts what the freelancers and the self-employed can do. COVID-19 has just made them worse.
Many California parents may not have schools open later this year. The state has set strict criteria for reopening and it’s not clear which areas will qualify. This has resulted in a lot of parents scrambling to find tutors for their children.
DeMaio, who heads a group called Reform California, held a press conference Wednesday with the presidents of the Escondido and Ramona school districts to call on California Governor Gavin Newsom to suspend AB5 to prevent parents from being fined for hiring tutors. AB5 does not include tutors on the list of exempt professions.
“This is absurd that the governor is allowing an environment where parents have to run the risk for violating AB 5, a state law, facing penalties and fines for doing so, just because they’re trying to help their children learn,” DeMaio said.
Gonzalez has pushed back, in a tweet, but her message is rather muddled. “A parent can utilize an actual tutor for their kids or pay for an online course/lesson and you do not become an employer! If you are bringing a ‘teacher’ or ‘tutor’ into your house daily to provide childcare, you are a household employer. These laws pre-date AB5.”
Her tweet would appear to indicate that hiring an online tutor is okay under AB5 but having one that teaches at home would make a parent an employer. “Household employer” refers to a section of California law that determines whether a person has to pay state taxes for people who work at their house. Gonzalez urged Californians to consult the law’s official state website. The law states that certain workers like cooks, groundskeepers, and maids are employees. Other professions are listed as “not employees,” and therefore are considered contractors, tutors being listed as one example. That would appear to contradict Gonzalez’s tweet, which stated that hiring tutors meant “you are a household employer.” So, which is it? How does AB5 apply?
Comments Gonzalez’s office made to the San Diego Union-Tribune make the situation murkier still. “The legislation’s author, Assemblywoman Lorena Gonzalez (D-San Diego), says tutors hired by parents generally qualify as independent contractors,” adding, “In most cases, tutors working for parents would meet all those requirements, Gonzalez’s spokeswoman said.”
“Generally”? “In most cases”? So, there are possible exceptions then? If so, what are they? Well, that’s not clear, either. Further complicating things is that some California parents have been trying to collectively fund “learning pods,” mini schools to educate their kids. Does AB5 make those parents employers or not? Who knows? Given that Gonzalez has always backtracked and promised to amend AB5 to deal with awkward issues, like its undermining of the livelihoods of professional musicians, it’s not clear what AB5 itself will look like in a few months.
So, if you’re a California parent, you educate your child at your own risk, apparently.