Last September, California Gov. Gavin Newsom signed AB 5 into law, a bill intent on reforming the state labor law to deal with the new gig economy. The law, which took effect, Jan. 1, forces businesses and companies to limit the amount of work performed by independent contractors or classify them as employees with a minimum wage and overtime pay, workers compensation, unemployment insurance, healthcare benefits, and the right to form a union.
The state’s Legislative Counsel defined the reclassification: “a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business.”
AB 5 exempts specified occupations such as “licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry.”
Newsom called AB5 “landmark legislation” to combat worker misclassification. “The hollowing out of our middle class has been 40 years in the making, and the need to create lasting economic security for our workforce demands action,” Newsom wrote in a signing statement.
“Today, we are disrupting the status quo and taking a bold step forward to rebuild our middle class and reshape the future of workers as we know it,” said AB 5 author Assemblymember Lorena Gonzalez, Democrat from San Diego. “As one of the strongest economies in the world, California is now setting the global standard for worker protections for other states and countries to follow.”
While AB 5 targeted such companies as Uber, Lyft, and meal delivery services like DoorDash and Postmates that rely heavily on independent contractors, it soon became clear that thousands of unconsidered professionals would be severely impacted — “some 2 million workers across industries far from the sharing economy and tech sectors, from truck drivers and general contractors to nail salons and strippers,” writes CalMatters.
The California Trucking Association filed suit and received a temporary injunction while a federal court judge considers granting a permanent injunction. The association argued that more than 70,000 independent truckers would suffer irreparable harm by not being able to set their own schedules, among other detrimental impacts.
Not considered, however, was the fate of independent contractors such as freelance journalists, artists, dancers, musicians, photographers, as well as the myriad of freelancers temporarily hired by entertainment-related companies. AB 5 only allows freelancer writer to produce an arbitrary 35 submissions for each company each year.
On Jan. 6, US District Judge Philip Gutierrez in Los Angeles denied granting a temporary restraining order requested by an attorney from the non-profit Pacific Legal Foundation, a libertarian public interest law firm, representing The American Society of Journalists & Authors and the National Press Photographers Association, saying the delay in filing for an injunction belied the argument in their Dec. 27 lawsuit that AB 5 created an emergency situation for freelancers, who rely on producing a volume of articles or photos to earn a living.
“The recent ruling denying a temporary exemption to freelance journalists and photographers is disheartening, to say the least. The people who stand to lose are those who are already the most vulnerable in the media world: people of color, women, LGBTQ+ writers, and those who work from home because of a disability.
We’re already seeing the destructive effects of AB5 as giant media companies like Vox pull out of California. But smaller outlets are also cutting back: LAist is limiting freelance photographers, San Diego Tribune is scaling back on freelance submissions and local columnists are losing their jobs. I wonder how LGBTQ+ media, already in a perilous position, will be further impacted by this legislation. Out, the Advocate and many other minority publications rely on armies of freelancers to put together their publications. They all stand to be hobbled by this law. How many important stories will we end up losing?”
Media organizations are informing their stable of freelancer contributors that they will abide by the California law. Forbes.com, for instance, sent out this email:
“Good morning! As you may know, a new law goes into effect in California on January 1 (AB5) that will prevent individuals who write more than 35 articles per year for a news outlet from being classified as independent contractors. While the law is under scrutiny and may end up being successfully challenged at some point next year, after January 1, 2020, individual contributors who reside in California will not be able to post in excess of 35 articles annually on the Forbes platform. We can continue to have California corporations or LLCs whose business is freelance writing and contribute more than 35 articles annually and, of course, California-based individual contributors who write fewer than 35 articles per year on that platform.”
“We are not cutting off California freelancers who might write over 35 pieces a year, as other publications have done, instead we are helping them to get business licenses so they can continue working for us under the B2B [business-to-business] clause,” says Marie Lyn (“Riese”) Bernard, CEO and editor-in-chief of the queer-owned, women-owned autostraddle.com where “people are able to tell their own stories,” That’s why the outlet has “an enormous pool of freelancers, many of whom are based in California, because cities like L.A. and San Francisco are often the only places where LGBTQ people feel safe.”
The Bay Area Reporter was hip to the side-effects of AB5 long before the bill was signed. “In our case, AB 5 would be a crippling blow, as the Bay Area Reporter relies on about 50 freelance reporters, critics, photographers, and delivery drivers,” BAR wrote in a Sept. 4, 2019 editorial. “Small news and media outlets like ours simply cannot hire additional full-time or part-time employees — that’s why we, and many other industries, rely on contract workers.”
The Los Angeles Blade and other LGBTQ outlets became aware of the dire situation after Vox Media abruptly fired more than 200 California freelancers working with its digital sports media company, SB Nation. Though BAR and others have implored state lawmakers such as lesbian Senate President Pro Tem Toni Atkins and gay State Sen. Scott Wiener to intervene and provide an exemption to the newspaper industry as has already been granted to doctors and real estate agents, apparently Gonzalez won’t budge.
“We don’t seek to overturn the entire law. We want the state to lift the submission cap and remove the ban on freelance videography. California cannot violate the First Amendment,” San Diego-based freelancer Randy Dotinga, board member and former president of plaintiffs American Society of Journalists & Authors tells the Los Angeles Blade. “California Freelance Writers United is working on getting an exemption via legislation.”
“AB5 also shuts the door on an entire generation of up-and-coming voices who could provide us with valuable insight. Many folks who are coming up in the industry will simply give up and move on to PR or copywriting. We’ll have a less-informed public because of it. California Freelance Writers United started a few months ago as a Facebook group to challenge AB5,” Blum notes.
Blum is concerned that the law is pitting journalist against journalist:
“It’s been interesting to see who actually cares about our plight. Some journalists in positions of power have abandoned us, including the Pulitzer Prize-winning columnist Michael Hitzlick at the L.A. Times. He wrote on Twitter that he sees us as undercutting union jobs — as scabs, essentially. Never mind that we pay taxes and respect picket lines. Considering the volatility of the industry writ large, and the fact that so many journalists cycle through periods of freelancing, it seems shortsighted to make some kind of ethical distinction between those who work out of an office and those who work from home. We all want to inform, inspire and tell stories that matter.
One of the most noxious myths Lorena Gonzalez is pushing is that the media industry will suddenly hire writers because of this law. It seems like Gonzalez and the California Federation are being willfully naive about the economic realities of the media industry and their ability to take on new full-timers.”
“This is not looking good at all. Assembly Bill 5 could permanently alter the journalism landscape in California, and not for the better,” says freelancer writer Joseph Fenity, president of the LA chapter of the National Association of LGBTQ Journalists. “Where are some of these Hollywood-based freelance entertainment reporters going to be based out of? D.C.? Let me know how that works out.”
“I think AB5 is a great law, but I don’t think the people who wrote it had any awareness of how freelance writers operate,” says Bernard. But “there’s no feasible way to hire a full-time staff member to represent every identity we need represented.” AB5 without an exemption for freelancers is “a danger to free speech and freedom of the press, particularly to independent press. There has to be a better way to regulate exploitation in media.”
The American Society of Journalists & Authors and the National Press Photographers Association lawsuit argues not only that AB 5 violates the First Amendment by unconstitutionally restricting free speech but also violates the 14th Amendment, the Equal Protection Clause, by not treating journalists that same as those working in similar professions. They are seeking a preliminary injunction, which will be heard March 9. Randy Dotinga says he is also seeking amicus briefs from supporting organizations.
In the meantime, the clock is running for freelance contributors to outlets that previously provided a trusted source of income. And there is a move afoot to bring similar pro-labor bills to other states, as well as the U.S. House of Representatives. Known as The Protecting the Right to Organize Act — or the PRO Act — which passed the House labor committee on Sept. 25, The Intercept reports that the PRO Act “would represent the most comprehensive rewrite of U.S. labor law in decades. It would eliminate right-to-work laws, impose new penalties on employers who retaliate against union organizing, crack down on worker misclassification, and establish new rules so that employers cannot delay negotiating collective bargaining contracts.”
But freelancers and the other possible 2 million people impacted in California alone do not have a lobbyist to bring the problems to the attention of lawmakers.
“This is a classic case of unintended consequences,” Capitol Weekly reported freelancer and Discover contributing editor Linda Marsa, a member of the Association of Health Care Journalists, as saying. “The thrust of the bill is wonderfully progressive California, but what’s really scary is that people don’t know the implications.”
And one of those unintended consequences is the potentially dire impact AB 5 will have on LGBTQ and other minority media which rely heavily on freelancer contributors.
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