Many parents are scrambling to come up with a plan to deal with distance learning. Tutoring is among the options, but hiring a tutor just got more complicated.
Jessica McClure-Kuhar is considering hiring a tutor for her 8-year-old son, who is going into the third grade in the Poway Unified School District.
“I’ve been trying to consider what a tutor would look like and the notion of Assembly Bill 5 was brought to my attention… and has brought confusion to what the options are,” she said.
The confusion is over whether the tutor would be an independent contractor or an employee. In this case, parents would have to pay salary as well as payroll taxes, worker's compensation, some social security, and so on, possibly for all the protections an employee gets under state law.
“You’re like now I need to be an employer on top of being an educator, on top of a parent who is working from home. Let’s just add it to the list,” McClure-Kuhar said.
Employment attorney Dan Eaton said he understands why people are resisting this.
"It is an administrative burden and it’s a financial burden because it's anywhere from 15 to 20% to 25% more to have the employer-employee relationship,” he said.
Eaton said it comes down to whether the tutor is an employee or an independent contractor. Under AB5, a tutor is presumed to be an employee unless ---the parents have minimal control over the way the tutoring is done.
The tutoring is not part of the household work and the tutor is customarily engaged in that occupation and has other clients.
“If you call a plumber, the plumber is not going to be exclusive. They’re going to go to the next house,” Eaton said. “If the tutor is going from your house and serving a whole bunch of other people, it’s going to be easier to establish them as an independent contractor and you can treat them as such.”
Eaton said AB5 defined what an independent contractor is, but he says labor laws governing workers, such as, household workers like tutors, go back years. Presently though he said, we are in unchartered territory.
“Everyone knows this pandemic has affected the law pandemically, and that is exactly what we’re seeing here," Eaton said. "Where this ultimately comes down, and what the rules are going to say, how they are going to be applied in particular instances, we won’t know for a year, or more than a year, well after we all hope this pandemic is over.”
“I think at the end of the day everyone wants to know what are our options?" McClure-Kuhar said. "What is the easiest way to make this work for everybody so we can just take care of it and know we have a path forward, and I feel like we’re just waiting for the other shoe to drop to find out what that would be like.”
Assemblywoman Lorena Gonzalez, who authored AB5 sent NBC 7 the following statement:
"AB 5 does not prevent a family from contracting directly with a tutor. However, if a parent or guardian is bringing a childcare provider or governess into their home, then requirements in our state and federal tax codes that govern who is considered a household employee applies. These are long-standing rules that pre-date AB5 by decades."