The California State Capitol is the state’s working seat of government.
Lawmakers in several states have introduced — and in some cases, already approved — legislation that could restrict the way freelance writers operate next year.
In California, Assembly Bill 5 (AB 5) restricts employers from classifying workers as independent contractors rather than employees under certain conditions. Approved by Gov. Gavin Newsom in September, it goes into effect on Jan. 1. Similar bills in New York and New Jersey (S4204) will make waves during the 2020 legislative session.
Also called the “gig worker” bill, AB 5 was created with Uber, Lyft, DoorDash and Instacart drivers in mind, trying to make it tougher for those companies to treat them as contractors rather than employees who deserve benefits. During the California legislative session, several groups — including freelancer writers, real estate agents and hair stylists — stepped up to voice their concerns. Some professions are now exempt, including doctors, lawyers, graphic designers and marketers. Freelance journalists didn’t make the list.
“This is a classic case of unintended consequences,” said AHCJ member Linda Marsa, an independent writer and contributing editor for Discover. “The thrust of the bill is wonderfully progressive California, but what’s really scary is that people don’t know the implications.”
The bill comes on the heels of the 2018 state Supreme Court ruling, Dynamex Operations West v. Superior Court. Trucking firm Dynamex fired its employees and made them contractors, and the ruling created a basic ABC test that says Californians should be employees unless they:
- Work free from the company’s control
- Perform tasks outside of the company’s main business
- Operate a truly independent business
The vague description worries freelancers. The second prong, for instance, could include tasks such as writing or producing a story for a media company, which could be considered an aspect of “main business.” A coalition of associations, led by the American Society of Journalists and Authors and AHCJ member Randy Dotinga, lobbied legislators for changes and clarification.
For now, freelance writers and photographers are currently restricted to 35 “submissions” per client per year. If they pass the limit, they must be hired to staff or stop working for that client, otherwise the company could be sued for “misclassifying” the freelancer.
For now, a submission can include more than one story, blog post or social media post if it’s related to the same event or topic. However, content produced on a recurring basis should be considered separate submissions. That means conference coverage can be filed as one assignment, but a weekly column must be counted per piece. This has already affected several California freelancers with regular columns, Dotinga said.
“Weekly columnists are being de-weeklied,” he said. “Others are being blacklisted.”
Companies such as transcription service Rev.com have decided not to hire California freelancers. A recent Patch Media ad sought stories about California from reporters who don’t live there. Other freelancers are already receiving “Thanks, but no thanks” notices from their clients during year-end discussions about contracts in 2020, said Vanessa McGrady, a California freelancer.
“It’s critical right now that journalists understand this law,” she said. “Even if you live somewhere else, this may be coming your way, too.”
McGrady, Dotinga and other freelancers continue to meet with representatives in California. They hope for a blanket exemption that will remove reporters from AB 5 entirely, given First Amendment concerns. Even then, an “emergency fix” likely wouldn’t take effect until 2021, Dotinga said. He foresees additional frustration for underrepresented voices, such as the LGBTQIA community and writers with disabilities.
“Freelancing is how women, older writers and others avoid gender and age discrimination and work for themselves,” he said. “From one progressive to another, this is ill-advised.”
AHCJ members should keep an eye on the legislation, both in California and in their own state. Organizations such as ASJA are considering legal options, Dotinga said, and freelancers are trying to understand details such as business-to-business exemptions, video and audio submissions, and three-prong ABC tests in other states such as Massachusetts, where the law seems broad enough for any freelancer working at home or without required work hours to be exempt.
“Even exempt clients, who do marketing and strategic content, don’t know they’re exempt and are beginning to limit their contracts, so this isn’t just affecting news outlets,” McGrady said. “It’s creating chaos and a chilling effect.”
I’m a freelancer in California who has been involved in efforts to change AB5. This blog post does an excellent job of outlining the issues surrounding a complex topic. I have one minor point of clarification involving an “emergency fix.” In California, most laws passed by the legislature and signed by the governor go into effect on Jan 1 of the following year. That includes changes to existing laws. However, there is provision for “urgency measures” that take effect immediately. An urgency measure is defined as “A bill affecting the public peace, health, or safety.” It requires a two-thirds vote for passage.
It is highly likely that AB5 will be amended when the legislature returns to session next year. Even the bill’s author has acknowledged the need for changes, though she appears to be resistant to providing a full exemption for freelance writers. It’s unclear right now what changes we can realistically expect. My understanding is that any amendment would be regular legislation that will take effect on Jan. 1 2021. It seems unlikely that they would attempt to pass this as an urgency measure.
I hope legal action is taken in California and I wish that organizations like ASJA and AHCJ would move forward immediately with legal action and not just be “considering” it. The California bill is horrendous and the one in NJ is even worse. While there are some abuses in various industries, the politicians who come up with these things are generally clueless and think they are being helpful. One example is the Uber, Lyft, DoorDash and Instacart drivers, who prompted this whole thing. The law is “trying to make it tougher for those companies to treat them as contractors rather than employees who deserve benefits.” Well most of these drivers don’t want to be employees, and being a driver is a fast and easy way to make money. The majority do this as a side job, and its great for students, and being an employee would destroy the flexibility they have now–to take their car out when they want, and make their own schedule. Politicians just don’t get it that not everyone wants to be an employee, and not every company can keep a full staff.
Anyway, I would urge organization to begin the litigation process now, and get as many groups behind you as possible–beyond writers but every type of profession and trade that will be affected. I had seriously been thinking about moving back to CA–forget it now.
It now appears that legislators in New Jersey are being sensible and will modify the new law so that freelancers can continue to do business as before. According to this article from Insider NJ, “The amendments to the Senate bill will restore language in the ‘B’ part of the test so that employees working outside the places of the employers’ business will continue to qualify as independent contractors.” Let’s hope that New York does the same. (https://www.insidernj.com/press-release/senate-will-amend-employee-misclassification-bill-codifies-existing-regulations/)
This could also have positive repercussions in California (at least I hope so). When freelancers discussed AB5 with its author, Lorena Gonzalez, one of their strongest arguments was that it put us at a disadvantage compared with freelancers in states that don’t have these restrictions. One of her replies was to point to proposed legislation in New York and Illinois. If those states grant similar exemptions to journalists, it puts us in a stronger position with our own legislature.
Regarding litigation: I’m not privy to details about the discussions, but my understanding is that the legal issues are complex, and any litigation will be costly. Some legal experts have said they don’t see grounds for a First Amendment challenge, but others who specialize in First Amendment law disagree and do see grounds for a challenge. One member of the California Freelancers group who is familiar with the discussions said this: “[It is] very expensive to challenge an existing law. Multiple legal advocacy groups are facing huge decisions, and weighing all options. Best thing all of us can do is to pressure our legislators, pressure any professional groups you’re in, and get the word out to ALL other freelancers.”
If you’re a freelancer in California, I encourage you to join the California Freelance Writers Unite Facebook group. If you’re in New Jersey, there are two Twitter hashtags where you may find others who are advocating for freelancers: #fightforfreelancers and #s4204.