NO JUSTICE, NO PIECE: WHAT WE TALK ABOUT WHEN WE TALK ABOUT THE FUTURE OF FREELANCE WRITING IN CALIFORNIA
BY ALBERT LANIER
In September of 2019, California Governor Gavin Newsom signed a bill slated to become law in January of 2020 that has the potential to threaten the livelihood and careers of hundreds if not thousands of the state’s residents-Freelance writers and journalists.
The bill is known primarily as Assembly Bill 5 or AB5 for short. This piece of legislation was described by the San Francisco Chronicle in a May 2019 article as “gig work legislation” that “could send seismic changes across California’s employment landscape.”
The Bill -passed within both chambers of the California State Assembly-is a legislative reaction to the California Supreme Court’s decision in April of 2018 to a 10 year old legal case known as Dynamex Operations West v. Superior Court of Los Angeles.
Delivery drivers for the firm Dynamex Operations West wanted full employee status as opposed to doing the job of a full or part time employee and being treated and categorized as an “independent contractor” and thus not entitled to all the benefits accrued employees. The case eventually went up to the California Supreme Court where the court essentially found in favor of the plaintiffs.
In a previous draft of AB 5, Section 1 of the then proposed bill notes “In its decision, the court cited the harm to misclassified workers who lose significant protections, the unfairness to employers who must compete with companies that misidentify and the loss to the state of needed revenue from companies that use misclassification to avoid obligations such as payment of payroll taxes, payment of premium for workers compensation, social security, unemployment and disability insurance.”
Thus “it is the intent of the legislature in enacting this act to include provisions that could codify the decision of the California Supreme Court in Dynamex Operations West v. Superior Court of Los Angeles and clarify the decision’s application in state law.”
The Dynamex Decision didn’t just apply to a number of drivers but a whole raft of professionals and through swaths of industries. Lawyers, Beauticians, Truck Divers, Barbers and many other independent contractors and businesses would be impacted by this decision.
And yes, so would Freelance writers and journalists.
So in 2019, the California Assembly went into action. Assemblywoman Lorena Gonzalez, an attorney with degrees from Stanford and UCLA who represented San Diego in the Assembly, proffered bill AB5 up to committees and eventually the floor of the legislature.
A self-described “Progressive Democrat” with a background as a fierce labor organizer, Gonzalez saw the bill as an effort to offer basic protections to workers she saw had been exploited by companies such as Lyft and Uber who mischaracterized their hires as independent contractors in effort to get out providing health care insurance and other benefits to them.
AB5 would use a standard known as the ABC test to determine if an individual could be categorized as an independent contractor or as an employee or worker for a company.
This test was legally established in a 1989 decision known as SG Borello & Sons INC v Department of Industrial Relations.
The AB5 also has legislative precedent-it used a law passed in the State of Massachusetts about 10 years ago with an ABC type test.
The Commonwealth Law known as Section 148B (Part 1, Title XXI, Chapter 149) establishes the test as “An Individual performing any service except as authorized under this chapter shall be considered to be an employee under those chapters unless 1) the Individual is free from control and direction in connection with the performance of the service both under his contract for the performance of service and in fact and 2) the service is performed outside the usual course of business of the employer and 3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.”
To buttress this then, note what an earlier draft of AB 5 stated: “The bill would provide the factors of ABC test be applied in order to determine the status of a worker as an employee or an independent contractor for all provisions of the Labor code and Unemployment Insurance Code except as a statutory exception from employment status or from a particular obligation refuted to employment or where a statutory grant of employment status or particular right related to employment applies.”
So, readers may be wondering, if the intent of this bill is to back up the Dynamex decision and back up and support exploited workers, Why is this a problem for freelance writers?
Simple. The Law imposes a cap on material submitted to outlets and firms all freelance writers and journalists (as well as photographers and artists) in the State of California. In earlier versions of Ab 5, the cap was 25 but after meetings and lobbying from a coalition of at least 20 organizations and groups that met with Gonzalez, the capt was raised tenfold to 35.
That’s right-35 items per outlet per year. Gonzalez has noted that this number-which seems to have come out of thin air-was determined by considering the yearly output of columnists and purportedly halving the number to create the Cap number.Once this limit of 35 is met, outlets would have to either hire the freelancer as an employee or quit working with them.
Since freelance writers and journalists in particular are by their very nature the very definition of Indpendent Contractors, this means they are in business for themselves and provide writing services to individual clients, newspapers, magazines, websites, organizations and various institutions. In essence, this cap serves as a possible restraint of trade and will likely decimate the revenues and thus incomes of dozens upon dozens of freelance writing professionals in the vaunted Golden State of California, one of the largest media markets in the entire country.
Rebecca Bodenheimer, a Bay Area based freelance writer, wrote in her DAME magazine piece examining the AB 5 Law entitled “Will this California Law end Freelance work?” that “despite its primary goals, AB5 is a sweeping bill that pulls freelance writers into its net.”
A number of professionals in other industries such as Lawyers, Doctors Graphic Designers and architects managed to secure exemptions from the law likely thanks to power of their professional associations and lobbies.
Bodenheimer notes in her piece that “many others-specifically freelance writers but also musicians, editors and photographers-now face crippling new limits on their ability to work for themselves.”
This is an important point to note. The comparison engendered with this Act is with employees and the mindset of the legislation is that of traditional employee-employer relationship.
However, as noted earlier in defining the nature of freelance writer and journalists, freelancing is by its structure flexible and entirely free in terms of work. Writers and journalists like other freelance professional determine when and where they will work and for what fee and financial dollar amount.
Thus, this cannot and is not even on the surface considered employee status or the position of workers but the province of professionals conducting business affairs.
Bodenheimer makes the irony of this bill abundant when writing “In other words, a bill that was designed to punish huge, exploitative corporations will ultimately leave small business owners, many of whom are already struggling because of the realities of the industries in which they work.”
The reality of the media industries has gotten bleak. Thousands of jobs lost in 2019 alone and declines in the media over a 10 year period from 2008–2018, according to Pew Research Center statistics (a 47 percent drop in the Newspaper industry alone).
Also factor in that “freelance writing is inherently unstable and the most common advice given to offset the high and lows is to get an anchor client w can provide state, ongoing work” observes Bodenheimer.
“AB 5 as written will make it extremely difficult, if not impossible for California freelance writers to retain anchor clients and achieve economic stability” concludes Bodenheimer.
Writer Larry Buhl’s piece in the California publication Capital & Main entitled “Translators, writers seek changes to gig work law” notes about the ABC test within the law “workers who don’t meet all three conditions must be considered as employees and its expected that AB5 would reclassify many California workers.”
Buhl also noted that the law applies to “the location of the worker not the company.” Thus companies based in California that hired a freelancer who lived in say New York would have no issue with the law but a company in New York hiring California freelancers would be bound by AB5.
It is thus no wonder the headline of an article in the Hollywood Reporter covering the impact of AB 5 on freelance writers was titled “Everybody is Freaking Out.”
Bodenheimer paints the fear felt by many freelancers in California: “They are worried that AB5 will result in a defacto blacklisting of California-based writers.”
Bizarrely there has been a reaction seeking to counter and assuage the justifiable fears and anxiety felt by hundreds of writers in California.
Vox ran an article on its site entitled “Freelance Journalists mad about a new California law. Here’s what missing from the debate” written by Alexia Fernandez Campbell.
The very headline of this piece sets the tone here -essentially writing off the concerns of writers in the state and implies they are somehow petulant, aggrieved teenagers instead of working professionals who in a number of cases raise children and families and in some cases even take care of aging parents and relatives.
The piece then sets up its framing structure through a Twitter spat between Huffpost Contributor Yashar Ali who accused Gonzalez of crafting the section of AB5 pertaining to freelancers as an “attack on press freedom” and Gonzalez responding that Ali was not a “real journalist.”
To begin with, this is an inappropriate and inaccurate lens in which to view the Freelance Cap and Section of AB5. The issues that freelance journalists and writers are not the lofty ideal of press freedom but the down to earth reality of making a living and economic concerns as have been noted above.
This also demonstrates the nature clickbait driven so-called reporting here. To use a social media strum und drang as the basis to report on an important piece of legislation is lowest common denominator writing of the basest type.
Campbell goes on to note that “news outlets often exploit freelance journalists by hiring them to do regular work that employees do just to avoid paying them benefits such as social security and unemployment.”
This is a blatant and utter falsehood. Freelance journalists like all freelancers are independent professionals who choose the work and the gigs they do. Writers are hired either through contracts for a number of pieces or on a piece by piece basis. This is not equivalent to or nor is it absolutely “regular work” meaning a staff job or position. To argue that writing a few pieces for a magazine is the same as being a full-time salaried writer for the same magazine is on its face simply illogical and by its very nature, structurally impossible.
The major arguments are soon trotted out by Campbell namely “what is overlooked is the alternative scenario” that is “without some sort of exemption for freelancers, its likely illegal for news outlets to hire any freelancers under a recent state Supreme Court ruling known as Dynamex.”
This is the Trump Card argument: That writers wouldn’t find work at all because the California Supreme Court decision in Dynamex.
Here’s the problem with that argument: The Dynamex decision was handed down in April of 2018. AB5 was signed in September of 2019. This means over a year occurred after the ruling was handed down.
This is important to note because those newspapers, magazines, websites and other firms and outlets continued using freelancers for gig work after the Supreme Court’s ruling. A rather strange occurrence this is if the court decision was meant to completely block these entities from using freelancers forthwith.
If the Dynamex decision was the true change agent here, Why then are writers deathly afraid of this newly minted state law? Why werent they concerned about the Supreme Court Ruling last year in the same panicked way they view AB5? Why are we discussing AB5 but not Dynamex in the same breath?
It should be finally noted that a court ruling is not the same as legislative law. Court decisions can and often do demand that actions take place and can order blockage of certain events and activities but court rulings are not the law, they are decisions about the law.
AB5-slated to go into effect on January 1st 2020-is the law. A state law through which businesses and professional are bound by its sections and by statute.
Thus Campbell’s premise here is wholly and completely invalid.
She writes that “The exception for freelance journalists was meant to create some flexibility for them.”
How then would limiting freelancers writers to a rigid numerical quota per publication, outlet and client and imposing a choice accept employment or lose further work be flexible? This is very definition of inflexible. In fact, it is forced and coercive.
Campbell later notes “the proper question is whether or not a freelancer’s yearly limit of 35 assignments per news outlets accomplishes that goal.”
Here she commits an error that compounds her utter and complete ignorance of this law. AB5’s section relating to freelancing doesn’t mention “assignments” at all. An earlier draft of the bill noted “Work that is performed by a freelance writer who does not provide content to any one publication.”
Content was the word used. This was later changed to the term submission. Neither content or submission indicate any specificity. In fact the law appears to leave this vague for the most part though it has been argued this can encompass one article as well as a series on the same subject.Basically, Campbell is simply being lazy here as well as inaccurate.
In the end, this new law could very well be a death sentence for a number of freelance writers. This is neither hyperbole nor pure unalloyed conjecture. Katie Kilkenny in her piece for Hollywood Reporter on AB5 and its impact on freelance writers notes despite the efforts of freelancers to have “organized a facebook group to discuss tactics, cold-called legislators, sought out labor and tax lawyers“ and even meet with the bill’s author Gonzalez, “some employers are distancing themselves from California freelance journalists”
“Their efforts may be too little and too late” writes Kilkenny.
As a freelance writer of 22 years who spent at least some or part of a couple years living and writing in California, this is admittedly a situation close to the vest for me especially since I have plans to return to the state and come out of retirement to freelance there.
While the situation looks admittedly bleak, there still might be hope in the collective actions and drive and determination of freelancers in California to fight for their careers, their livelihoods and their professional lives. These individuals have fought their fears and terror to let lawmakers and others know that they will not back down and in the words of Dylan Thomas “go gentle into that good night.”
In the end , “may justice be done though the heavens fall.”
Albert Lanier has been a professional writer for 25 years. He worked as a freelance journalist and writer in California, Washington and Hawaii for 22 years. He has written for Honolulu Weekly, Pacific Business News, Edible Hawaiian Island and Hawaii magazine among others. He currently serves as an independent commentator and pundit interviewed on various podcasts, talk shows and other programs that include Parallax Views and Giving the Mic to the Wrong Person. He also writes a blog on Medium.com
