Partner Amelia Sargent and senior associate Kenneth Trujillo-Jamison have filed an amicus curiae brief in the California Court of Appeal on behalf of nine community-based organizations in People of the State of California v. Maplebear Inc. dba Instacart.
In this case, the City of San Diego obtained a preliminary injunction seeking to force Instacart, which provides an app-based platform facilitating food and grocery deliveries, to comply with California’s “ABC Test” for independent contractors by classifying workers using its platform as employees. Instacart appealed.
Willenken’s brief, filed in support of Instacart’s appeal, explains why the injunction cannot stand in light of Proposition 22, which California voters resoundingly passed last month. That initiative classifies “app-based workers” such as workers using Instacart’s platform as independent contractors, rather than as employees, and guarantees such workers certain benefits and workplace protections.
Willenken also argues in the brief that affirming the trial court’s preliminary injunction would impose irreparable harm on workers and communities of color. The gig economy provides flexibility, opportunity, and a preferred lifestyle to workers of color, and grocery and food delivery services to communities of color, a need that has increased since the start of the COVID-19 pandemic.
Willenken further argues that enforcing the injunction would reduce income-earning opportunities and services for communities of color, which would compound the harm suffered during the ongoing COVID-19 pandemic.
Willenken has extensive experience in the heavily litigated issue of whether gig economy workers should be classified as employees or independent contractors. Partner Jason Wilson recently argued before the California Supreme Court in Vazquez v. Jan-Pro Franchising International, Inc. et al, on a question certified by the Ninth Circuit whether the “ABC Test,” introduced in Dynamex Operations West Inc. v. Superior Court, and now used to determine whether an individual is an independent contractor versus an employee in certain contexts, applies retroactively.