Everyone has their favorite saga. For some, it’s "Lord of the Rings." For others, it’s "Star Wars," and for a shrinking few out there, it’s even "Game of Thrones." But for workers’ comp nerds like me, there’s always room on the shelf for the California saga of the gig workers: employees or not?

Gregory Grinberg

As we all will recall, between stories of wall-to-wall COVID coverage, we saw the unfolding of California’s misguided efforts to cut off its nose to spite its face. Assembly Bill 5 passed in California in an effort to hurt the gig economy entities: Uber, Lyft, Doordash and such. 

However, those giant entities marshaled the resources to challenge AB 5 turning the gig workers/independent contractors into employees. Instead, they financed Proposition 22, which passed with more than 58% of the vote, excluding the gig economy from the reach of AB 5.

A trial judge ruled that Proposition 22 was unconstitutional, and an appeal followed, which is still pending.

In the meantime, what’s the status of the law? Are gig-economy workers employees as per AB 5? Independent contractors as per Prop. 22?

In the recent panel decision of Dolmajian v. Doordash, this very issue was explored. A workers’ compensation judge set the matter for a priority conference and ordered defendant Doordash to complete a joint pretrial conference statement. However, defendant sought a stay of proceedings pending the appellate review of the Proposition 22 ruling.

As defendant sought removal, the WCJ rescinded the order but also asked for guidance from the Workers' Compensation Appeals Board, which dutifully obliged.

The guidance, summed up, was as follows:

• Defendant should be afforded a hearing on the petition to stay proceedings.
• 8 CCR 10530 governs petitions for stays and should be followed in seeking a petition to stay proceedings.

The case is off calendar at the time of this post, so one might speculate that the petition for a stay was granted, at least temporarily. Certainly, there must be many of these cases out there, waiting to see the fate of Proposition 22 and their workers’ compensation cases.

If Proposition 22 is ultimately found to be invalid, will we see a flooding of the WCAB’s calendar with all the cases so stayed? On the other hand, perhaps the uncertainty and delay in the ruling on Prop. 22 will lead to more early settlements. A closed file is a happy file.

What do you think?

Gregory Grinberg is managing partner of Gale, Sutow & Associates’ S.F. Bay South office and a certified specialist in workers’ compensation law. This post is reprinted with permission from Grinberg’s WCDefenseCA blog.