Legislation update: AB 5 may exempt freelance writers but PRO Act passes

Carolyn Crist

About Carolyn Crist

Carolyn Crist (@cristcarolyn) helps AHCJ’s freelance members find the resources, tips and contacts they need to create and run a successful business. A freelance journalist and author, Crist covers health, medicine and science stories for national news outlets such as Reuters, Runner’s World and Parade. She also writes for trade and custom publications. Contact her at carolyn@healthjournalism.org.

A view of Congress

Photo by Sean Stayte via flickr

Independent contractor legislation continues to shift quickly at both the state and national levels — with writers and editors waiting to see what happens next.

First, California legislators may ease restrictions against writers and photographers, the San Francisco Chronicle reported on Feb. 6.

Assembly Bill 5, which went into effect in California on Jan. 1, established a cap that limits freelancers to 35 submissions per publication per year. The law has already affected freelancers and publications, including several AHCJ members.

On Thursday, however, AB 5 author Assemblywoman Lorena Gonzalez, D-San Diego, said she’ll request amendments that will remove these restrictions. Other changes will help musicians, small businesses and nonprofit arts groups, too.

“Based on dozens of meetings with freelance journalists & photographers, we have submitted language to legislative counsel that we hope to have available next week to put into AB1850 which will cut the 35 submission cap & instead more clearly define freelance journalism,” she tweeted.

As part of this, she’ll highlight the bill’s exemptions for businesses that serve other businesses, making it clearer that freelance writers can be part of that group.

“We are also finalizing language after discussions with Getty, Shutterstock & photographers and videographers regarding platforms used by independent businesses to sell their work & clarify that doesn’t create an employment situation,” Gonzalez added.

National legislation

At the same time, new legislation moved forward at the national level late Thursday night that could also affect independent contractors and freelancers. The U.S. House of Representatives voted on the Protecting the Right to Organize (PRO) Act, H.R. 2474, approving the bill 224-194, reports Bloomberg Law.

Freelance writers have voiced concerns about the bill because, although the legislation appears to be focused on unions, it contains similar language to AB 5 regarding employee classification. Namely, the “ABC test” used to classify a worker as an employee versus an independent contractor mirrors the unclear California legislation.

In fact, among a few social media groups, freelance reporters have noted that the national legislation directly copied and pasted some of the sections from the California bill. This week, journalists with the California Freelance Writers United group, as well as the Fight for Freelancers groups in New York and New Jersey, have called representatives to voice their concerns.

“AB5 is killing careers and forcing us to consider leaving this state we love,” said AHCJ member Randy Dotinga in a Fight for Freelancers NJ press release. Dotinga is also a board member and former president of the American Society of Journalists & Authors, which has joined with the National Press Photographers Association to sue California over AB5’s constitutionality.

“We see the damage grow every day as our clients blacklist us or restrict our work,” he added. “Some clients are unnecessarily requiring us to incorporate at a cost of hundreds of dollars a year, while others are so bewildered by the requirements that they’re unwilling to let us take advantage of the exemption at all.”

For now, the Senate version of the national bill (S.1306) is unlikely to receive a floor vote, Bloomberg Law and other sources say. Lobbying has increased on both sides, and the White House has threatened to veto the bill due to the partisan nature and threat to the gig economy.

“It appears to cut and paste the core provisions of California’s controversial AB 5, which severely restricts self-employment,” says a White House statement. “AB 5 is actively threatening the existence of both the franchise business sector and the gig economy in California.”

The legislation will likely come back in the fall, so in the meantime, freelance writers and photographers are continuing to call their representatives to voice their concerns. The ASJA/NPPA-led lawsuit will head to court on March 9. Several journalists are organizing a national Fight for Freelancers group, which may be up and running soon. I’ll bring you the details here.

If you want more information about AB 5 and previous updates, read these AHCJ posts: New bills could hinder freelancers’ work in 2020, Freelance journalists sue California over new AB 5 law, and What you need to know about freelancer legislation in 2020.

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