Assembly Bill 5 (AB5), signed into law last month by governor Gavin Newsom, will impact the valuation of many small businesses in California that have grown to depend on independent contractors. For impacted owners intending to sell in the near term, this new law may require a change of plan.
The new law, which goes into effect on January 1, 2020, creates an explicit three-part test for whether a worker can be classified as an independent contractor. A worker can only be considered an independent contractor if:
- (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
- (B) the worker performs work that is outside the usual course of the hiring entity’s business; and
- (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
AB5 exempts many occupations including doctors, dentists, lawyers, engineers, architects, accountants, real estate agents, travel agents, graphic designers, human resources administrators, grant writers, marketers, fine artists, investment advisors, broker-dealers and salespeople provided their pay is based on actual sales, rather than wholesale purchases or referrals. However, many small businesses in California that regularly employ independent contractors for work that is within the usual course of their business are not exempt. For these businesses reclassifying workers could add as much as 30% to labor costs. Labor intensive service businesses will be most impacted. Court reporting, janitorial and delivery services are typical examples.
Non-exempt California businesses that have to reclassify independent contractors to employees will likely see a contraction in enterprise value as buyers (and banks and appraisers) apply the expected increase in labor cost to proforma financials and guess at how much of the increased cost can be passed along to consumers. As businesses in a particular non-exempt industry convert from independent contractors to employees, the competitive playing field will be re-balanced. Some who choose not to comply will go out of business. Those who already comply could see an increase in business, and value.
Business owners are considering their options to respond to the new law and its impact on valuation, including:
- Mount legal or policy challenges – The major gig-economy platform companies will challenge the law and small businesses may follow suit.
- Relocate work outside California – Can work currently being done by local independent contractors be transferred to contractors outside of California?
- Ignore the law – Some owners will no doubt continue with business as usual in the hopes that they don’t face a legal challenge.
- Reclassify workers and absorb the additional costs – The new law will raise costs for those who reclassify workers, and likely for the consumers of their products and services. There is a lot to consider here. Which workers should be reclassified? How will worker roles change? What are the cost implications? How will these changes impact supervision, accounting, compliance and insurance requirements? Will the change result in a more committed and productive work force?
Regardless of how they respond, business owners who have spent years building their businesses under an independent contractor model and are impacted by AB5 are at crossroad. Hopefully this article raises awareness of the issues and helps some owners evaluate their options. If you are one of these owners, be sure to get professional legal and HR counsel.
Adam Wiskind is an M&A advisor at Exit Strategies Group and is a Certified Business Intermediary based in Sonoma County California. If you are interested in better understanding this topic or in selling a $1-50 million revenue California business, contact Adam at email@example.com.