Subtitle: Playing 10 Questions with California’s Employment Development Department about How to Onboard Former Freelancers



 

Since the California Legislature passed Assembly Bill 5 (AB5) in September of 2019, the rules regard who is and who is not an employee in this state have gotten ever more stringent – and confusing.

Why confusing? Because there was a very loud roar from several industries whose workers’ statuses were so severely compromised by this Bill.

I remember being at the 2019 CSEA State Tax Agency Liaison Meeting (STALM) in Sacramento after the bill was signed and one of the big concerns was truckers. Many of them work for the same company all year round (one “employer”) but own their own rigs and have always filed their tax returns using a Schedule C. Suddenly, if they had to be employees, there goes their federal deduction for the depreciation on the very expensive rig (costs approach $100,000 for some), the interest or lease fees, the fuel costs and all the other, legitimate out-of-pocket expenses they have in order to do their “jobs.”

They were not the only industry with legitimate issues. Nearly a year after AB5 was passed, Governor Newsome signed AB2257 on September 4, 2020. This gave us  an entire list of industries and employees that are now exempt from the rules of AB5.

But we weren’t done yet. The entire industry of gig transportation workers (the original target for AB5) did more than just protest. They floated a 2020 ballot proposition to exempt gig workers from AB5. Proposition 22 passed in the November election. So now, the main workers for whom AB5 was written are exempt from AB5 by law. Granted, Prop 22 came with some conditions requiring Lyft, Uber, etc. to provide employee-style benefits and certain work-hour restrictions.

Still confused?

That brings to mind the exit line from the parody television series, Soap. “”These questions—and many others—will be answered in the next episode of…Soap.”

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Well, I have some bad news for you. I will not be clearing up the entire situation. But…I did have some important questions that really needed to be clarified by our California Employment Development Department (EDD). They were kind enough to bring an entire team of their key staff to this year’s CSEA STALM virtual meeting.  Some of my questions were covered during the meeting. Others were answered afterwards by one the EDD’s team of Taxpayer Advocates.

OK, let’s play 10 Questions with the dedicated team at California’s Employment Development Department:

 

Q1.  All businesses that pay workers must use the ABC test that will probably define their long-term freelancers as employees. Does California have any law or amnesty provision similar to the IRS’ Voluntary Classification Settlement Program (VCSP)? (Note: In very simple terms, the IRS program works with companies that had consistently been issuing a Form 1099 to all affected freelancers. They can pay 10% of one year’s payroll taxes and avoid being audited for all the earlier open years.)

California does not have a program like this. It would require the state legislature to pass laws to make this possible. Perhaps CSEA should lobby our legislature for an amnesty program for AB5.

 

Q2. Since there is no VCSP-like program, what are the consequences (or protections) for those employers who sign up with the EDD for the first time to comply with the new laws?

A. There are no specific protections. But newly registered employers are not apt to face automatic audits for all the earlier years when they are not in compliance. In other words, the EDD will not get a specific alert that this new employer has been in business for 20 years and has just now registered as an employer. When filling in the DE1 registration form, the employer should simply enter the current year in box D as the first payroll date.

Q3. But wait! The statute of limitations to assess payroll taxes is open for all years in which the employer had employ