The alternative to AB 5 would be worse.
Politicians and members of the media love a good Twitter fight. But one journalist’s clash with a California lawmaker over a controversial labor law has left many people confused about what the law will do to their careers.
Yashar Ali, a magazine writer and regular contributor to HuffPost, slammed California Assemblywoman Lorena González this weekend for her role in passing AB 5, which will require companies in the state to classify most workers as employees, not independent contractors or freelancers. The law carves out exemptions for a long list of industries, including journalism. One of those exemptions lets journalists freelance up to 35 assignments per news outlet each year. A publication must hire freelancers as employees if they want someone to work more than that.
Ali called the limit an attack on press freedom and a series of back-and-forth insults followed.
It all started with this tweet on Saturday, referencing a recent Hollywood Reporter article that described freelancer’s concerns about the impact of the law.
California Assemblywoman @LorenaSGonzalez has launched a direct attack on press freedoms with her bill.
— Yashar Ali (@yashar) October 19, 2019
González did not take kindly to that criticism and responded aggressively. She accused Ali of not being a real journalist. Soon, other journalists and California labor leaders were involved in the fight: Several journalists sided with Ali, while Gonzalez’s allies and other journalists called the attacks on AB 5 unfair. It also sparked a discussion about the state of freelance journalism during a time of upheaval for the news industry.
AB5’s 35-pc limit per outlet for freelancers aims to curb the kind of slaughter occurring at Sports Illustrated which is laying off 40 staff journalists w benefits to replace them w 200 contractors https://t.co/2f6VDTxZ9B
— Margot Roosevelt (@margotroosevelt) October 20, 2019
The controversy reflects legitimate criticism of AB 5, but two things can be true at the same time. One, 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. Two, limiting a freelance journalist’s work to 35 assignments each year per news outlet will disrupt the livelihoods of many freelance journalists.
However, AB 5 is not an attack on press freedom, as Ali claims. (Ali did not respond to Vox’s request for comment.) What is overlooked is the alternative scenario: Without some sort of exemption for freelancers, it’s likely illegal for news outlets to hire any freelancers under a recent state Supreme Court ruling known as Dynamex. The exemption for freelance journalists was meant to create some flexibility for them.
California’s AB 5 bill, explained
The Twitter dispute centers around a major California law passed in September, called AB 5. The law, which goes into effect in January, makes it much harder for companies to label workers as independent contractors (a.k.a. freelancers) instead of employees, a common practice that has allowed businesses to skirt state and federal labor laws.
Hundreds of thousands of independent contractors in California, ranging from Uber and Amazon drivers to manicurists and exotic dancers, will likely become employees under AB 5. So would many freelance journalists who do four or more assignments each month for one news outlet.
That small status change is huge. These workers would suddenly get labor protections and benefits that all employees get, such as unemployment insurance, health care subsidies, paid parental leave, overtime pay, workers’ compensation, and a guaranteed $12 minimum hourly wage. It also means companies are fuming about the added cost.
Ali’s complaint on Twitter, echoed by many writers over the weekend, revolves specifically around the carve-out for freelance journalists. They argue that the law will force companies to cut back assignments for freelancers because many news outlets can’t afford the added labor costs of hiring freelancers as employees.
Caitlin Pearce, executive director of the Freelancer’s Union, said many of the group’s members share Ali’s concerns. She points out that not all part-time jobs, for example, have meaningful benefits that outweigh the flexibility and control that freelancers have. Some freelancers would rather have more flexible schedules than a regular job allows, or the possibility of working for multiple publications.
“It’s a complicated problem,” Pearce told me. “Misclassification is certainly a big issue and there’s a group of workers that would be better protected as employees, and we don’t want to get in the way of that. I do think stronger exemptions for some industries is a good thing.”
Media companies, for the most part, don’t seem to like AB 5 at all. They’ve protested the bill, with some arguing that they will go out of business if they have to limit the number of assignments for each freelancer. This only applies to media companies with workers in California.
Editors for the Bay Area Reporter, a weekly paper that serves the LGBTQ community in the San Francisco area, said it would have to look for more freelancers.
“We would have to hire another 50 freelancers — at least — in an economy and region where it’s increasingly difficult, if not impossible, to do so,” the editorial board wrote in September.
But the truth is, it’s probably illegal right now for media companies to hire any freelance journalists in California under a groundbreaking 2018 court ruling. AB 5 is an imperfect, but certainly better, alternative to nothing.
The court ruling that changed everything
A 10-year-old lawsuit in California paved the way for AB 5. In 2018, the California Supreme Court ruled in favor of workers in a case called Dynamex Operations West v Superior Court.
Workers for a document delivery company called Dynamex Operations West were seeking employment status. The drivers, who were treated as independent contractors for the delivery service, said they were required to wear the company’s uniform and display its logo, while providing their own vehicles and shouldering all the costs associated with the deliveries. Therefore, they should be classified as employees, they argued, not independent contractors. (Amazon drivers recently sued the company for similar reasons.)
In May 2018, the state’s highest court agreed with Dynamex drivers. The ruling essentially created the so-called “ABC test” to determine whether a worker is an employee or independent contractor under California law. To hire an independent contractor, businesses must prove that the worker a) is free from the company’s control, b) is doing work that isn’t central to the company’s business, and c) has an independent business in that industry. If they don’t meet all three of those conditions, then they have to be classified as employees.
That is a much clearer — and stricter — standard of proof than the vague guidelines under federal law. That’s why gig companies like Uber and Lyft were up in arms about it. It’s one of the biggest challenges yet to the gig economy, which relies on small armies of independent contractors to do the bulk of the work. Uber likely would have to reclassify tens of thousands of drivers in California as employees, something Uber drivers have been fighting for in court, unsuccessfully, for years.
Most of the news coverage of Dynamex has focused on the ruling’s impact on gig companies. But the law also impacts the news media, which relies heavily on freelance writers and photographers in addition to full-time and part-time journalists, especially in an era when newspapers, magazines, and online publications are routinely laying off staffers.
The law would disrupt the journalism industry because news outlets would probably fail the “B” prong of the Dynamex test. It’s pretty clear that freelance writers and photographers are doing work that is “central” to the company’s business. After all, they produce content for readers and viewers that the company sells to advertisers and subscribers. So if freelancers sued the San Francisco Chronicle, for example, arguing that they’re employees under Dynamex, the newspaper would have a hard time arguing that they could pass the ABC test. That means media outlets would need to stop using freelancers or hire them as part-time employees instead.
Which brings us to AB 5. The law was meant to codify the Dynamex ruling into law while also creating exemptions for some professions, such as hair stylists, real estate agents, and freelance journalists.
Critics of AB 5 often miss a critical issue
The problem with AB 5 isn’t about restricting press freedom. González and other lawmakers wanted to give freelance journalists relief from the restrictions of the Dynamex ruling while also trying to stop news outlets from exploiting freelancers who should be hired as employees.
The proper question is whether or not a freelancer’s yearly limit of 35 assignments per news outlet accomplishes that goal. The limit of 35 assignments means that a publication like the San Francisco Chronicle is following the law if they hire a freelancer to write no more three articles a month. If that person writes four, then the Chronicle should hire them as a part-time employee, with all the labor protections that come with that. Lawmakers came up with that limit because they believed that someone with a weekly column should at least be treated as a part-time employee, according to a recent article in the Hollywood Reporter, which prompted much of the online discussion.
What freelancers are rightly worried about is whether or not a newspaper like the San Francisco Chronicle would actually hire the weekly columnist as an employee or just cut back the number of assignments for each freelancer to avoid having to hire them. If it’s the latter, then freelancers will struggle even more to pay their bills, which is not the outcome California lawmakers intended.
“[AB 5] was trying to strike a balance between ensuring that there are good, full-time jobs in journalism while also understanding that not everyone is looking for that,” Caitlin Vega, legislative director for the California Labor Federation, told me. Her organization sponsored the bill.
But once again, it’s important to note that the limit of 35 assignments is still better than the likelihood of zero assignments under Dynamex. So far, no freelance journalists in California have sued over their employment status using the ABC test, but they could. As mentioned previously, the media industry would probably fail the “B” prong of the test and would have to hire freelancers as employees — or not use freelancers at all.
So AB 5 is an imperfect solution, but it’s something. More importantly, it outlaws the common practice of hiring freelancers to work regular shifts like an employee would but without giving them basic benefits or labor protections.
González ended the Twitter fight by saying she is open to tweaking AB 5. “I will continue to work with freelancers, the industry & unions that represent writers to see if there are further changes that should be made, especially for digital quick jobs,” she wrote. “But this won’t get resolved just on Twitter. And it can’t happen before January.”
Author: Alexia Fernández Campbell