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School superintendents are the latest to wonder how the new law could affect their business model. Some local districts employ workers ranging from coaches to arts instructors to nurses on a contract basis.
Industries across the state are scrambling to understand how they will be affected by AB 5, the new state law limiting the use of independent contractors. Add to that list public school districts, which employ tens of thousands of athletic coaches, arts instructors and even some special education service providers on a contract basis.
Groups of workers ranging from truck drivers to freelance journalists to gig economy workers like Uber drivers have publicly decried the law and challenged it in court. Tech companies including Uber and Doordash are hoping to qualify a November ballot measure that would exempt them from the law’s requirements.
Now school superintendents are the latest to wonder how the new law could affect their business model. AB 5 could also impact rural and urban districts differently.
“We do want to make it really clear that there are impacts that affect not just our relationship with contractors but on our teaching experiences and our students,” said Manny Rubio, spokesman for Sweetwater Union High School District, the second largest district in San Diego County. “It would be great if we could figure out exemptions that help our students and the community.”
The most likely impact in Sweetwater would be on individual dance instructors and coaches, who are not full-time employees of the district, Rubio believes. The district pays hundreds of coaches a stipend, usually ranging from $2,500 to $4,500, to lead everything from cheerleading to basketball and swimming. Sweetwater also contracts with many individual dance instructors and musicians for supplemental educational experiences.
Sweetwater would not be able to convert many of those positions into part-time jobs, which would necessarily limit educational experiences for students, Rubio said.
Public school jobs have historically been middle-class jobs with health care, paid sick leave and retirement benefits, said Evan McLaughlin, chief of staff for Assemblywoman Lorena Gonzalez, who wrote AB 5 and whose Assembly district includes the Sweetwater district. “Cutting those requirements [by paying workers on contract] creates a race to the bottom that the assemblywoman is not interested in.”
McLaughlin said that school districts may well have to change the way they employ at least some workers.
AB 5 mandates that contract workers must pass a three-part “ABC” test, laid out by the California Supreme Court in Dynamex Operations West Inc. v. Superior Court: the workers must control their own schedule, provide a service outside of the employer’s core business and perform an independently established trade or occupation.
If a worker does not meet all three prongs, they cannot be paid on a contract basis. In order to keep previously contracted workers employed, businesses would need to bring them into part-time or full-time roles or alter their arrangements so that the worker meets the ABC test.
AB 5 carves out a number of exemptions for all kinds of workers, including private tutors, but doesn’t appear to address many of the kinds of contractors who work in schools.
Maritza Koeppen is superintendent of Vallecitos School District, which operates one K-8 school in rural North County. She isn’t worried about arts instructors or coaches. Instead, she’s worried about her ability to provide special education services and health care.
For instance, Vallecitos currently contracts with an individual nurse to provide some services to the district. The nurse does sporadic work for the district and there is no way Vallecitos could afford to bring her on as an employee, Koeppen said.
Similarly, Vallecitos contracts occasionally with another individual to help with renovations and construction projects. But the work is so sporadic, Koeppen said, that part-time just isn’t an option.
For now, the district employees a part-time psychologist – so that’s not a problem. But in her three years at the school, Vallecitos has been through four psychologists, some individually contracted, Koeppen said. Because the remote district is unable to pay the same as other districts for psychological services, she said, it’s hard to keep the services flowing.
“As a small district, we have the same services needed, but we have less students, so we can offer less time and less pay,” she said.
Mark Stephens, superintendent of Borrego Springs Unified School District, echoed Koeppen’s concerns.
“If strictly enforced, [AB 5] will certainly have a detrimental effect on our district,” he wrote in an email.
For many special education services, Koeppen contracts with an agency, rather than an individual. For instance, she hires an agency that provides physical therapists in some cases and translators for events. She worried those services could be impacted.
But McLaughlin unequivocally said such arrangements would not be affected. Since the district is contracting with an agency, not an individual, AB 5 wouldn’t apply in those cases.
The same holds true, for instance, for after-school services. Many schools contract with agencies to provide an after-school program. McLaughlin said Gonzalez’s office has fielded many constituent calls about after-school programs, but that they should not be an area of concern for school districts.
Given the breadth of California’s economy, McLaughlin acknowledged that there will be lots of questions about AB 5 that need to be sorted out over the next year. But he said that Gonzalez’s office stands ready to at least discuss potential exemptions with school districts.