California’s Assembly Bill 5, which sets a cap of 35 articles per year per “putative employer,” was created to prevent gig economy workers like Uber drivers from being misclassified as contractors. However, writers and others argued that their industry works differently and that the law could force them out of business. The bill’s author, Lorena Gonzalez, reacted.
California-based freelance writer Arianna Jeret recently learned about Assembly Bill 5 and is now concerned she and her colleagues in CA may soon be speaking about their jobs in the past tense.
Jeret, who contributes to relationship websites YourTango.com and The Good Men Project, says freelance writing has helped support her two children and handle their different school schedules. Her current gigs — covering mental health, lifestyle and entertainment — allow her to work from home, from the office and even from her children’s various appointments. “There were just all of these benefits for my ability to still be an active parent in my kids’ lives and also support us financially that I just couldn’t find anywhere in a steady job with anybody,” she says.
Jeret is now coming to terms with how her lifestyle will change come Jan. 1, when AB 5, California legislation aimed directly at the gig economy that was signed into law Sept. 18, will go into effect.
The bill, which cracks down on companies — like ride-sharing giants Lyft and Uber — that misclassify would-be employees as independent contractors, has been percolating through the California legislative system for nearly a year. It codifies the 2018 Dynamex decision by the State Supreme Court while carving out some exemptions for specific professions.
But the exemption for freelance journalists — which some have only just learned about via their colleagues, press reports, social networks and/or spirited arguments with the bill’s author on Twitter — contains what some say is a potentially career-ending requirement for a writer to remain a freelancer: If a freelance journalist writes for a magazine, newspaper or other entity whose central mission is to disseminate the news, the law says, that journalist is capped at writing 35 “submissions” per year per “putative employer.” At a time when paid freelance stories can be written for a low end of $25 and high end of $1 per word, some meet that cap in a month just to make end’s meet.
Amy Lamare, who writes for money site Celebritynetworth.com and YourTango.com, adds, “Everyone’s freaking out, like my anxiety is going through the damn roof.”
To keep their lifestyles under AB 5, all of these writers will have to develop a much broader base of editor contacts and likely experience more competition as a result.
In the last few weeks, concerned freelancers who like their contractor status have slid into the Twitter replies of Assemblywoman Lorena Gonzalez, the bill’s author, and her chief of staff to voice their opposition. Frustrated with the response they’ve received so far, freelancers have organized a Facebook group to discuss tactics, cold-called local legislators, sought out labor and tax lawyers, and, as a result of their efforts, won two meetings at Gonzalez’s San Diego offices this month. Still, with the law set to go into effect on Jan. 1 and some employers already distancing themselves from California freelance journalists, their efforts may be too little, too late.
The crux of AB 5 for freelance journalists is the “B” requirement of the legislation’s so-called “ABC test” to determine if a worker is an employee or an independent contractor. The B test requires that a freelancer “performs work that is outside the usual course of the hiring entity’s business.” For freelance writers — who perform the same work as staff writers, just less frequently — the odds are that any argument they present as to how their roles are unique won’t pass muster, and therefore the 35-“submission” cap per year will apply if they want to remain an independent contractor. Work that counts as a “submission” can include a published individual story, a series or coverage of a single event, Gonzalez tells The Hollywood Reporter.
The overall goal of AB 5, Gonzalez says, is “to protect and preserve good jobs. We’re trying to create new good jobs and a livable, sustainable wage job.” Indeed, freelancers typically do not enjoy employee benefits like paid leave, sick days, health care and retirement benefits, nor are they covered by workplace civil rights laws that prohibit discrimination, and they have less recourse if laws are broken or fees aren’t paid on time (the latter a frequent complaint of freelance journalists). Gonzalez, who previously worked as a labor organizer and says she spoke to “dozens” of freelance journalists while writing the bill and moving it through the lawmaking process, adds that freelancers can be used to break newsroom unions like the ones formed last year at The Los Angeles Times and this year at The Ringer.
As for how lawmakers settled on the 35-submission figure, Gonzalez says that she and her team decided that a weekly columnist sounded like a part-time worker and so halved that worker’s yearly submissions. After protest from some freelancers, the number was bumped up to 35. “Was it a little arbitrary? Yeah. Writing bills with numbers like that are a little bit arbitrary,” she says.
Still, labor experts and freelancers alike are skeptical that the desired outcome of AB 5 — that newsrooms will hire California-based freelancers as part-time or full-time employees — will be achieved in the short term, especially as the news media continues to face major challenges to its business (in September, Business Insider estimated that 7,200 workers have lost their media jobs so far this year). Many publications that employ California freelancers aren’t based in the state and it’s not clear how AB 5 will affect them. Still, some are choosing to opt out entirely. Indeed, several freelance writers who spoke to THR say that various out-of-state employers — some with offices in California — have already told them they’re cutting ties with California freelancers.
“I have heard from clients that they’re just going to avoid working with California freelancers,” freelance entertainment writer Fred Topel says (Topel chose not to name those clients in case they change their minds). THR has additionally reviewed several job notices in transcription, blogging and SEO writing that have explicitly stated that California freelancers will not be considered.
Large California-based news media brands are still figuring out the logistics of how to comply with the law. Asked how he plans to handle the implementation of AB 5 next year, San Diego Union-Tribune publisher and editor-in-chief Jeff Light says, “We’re in the process of sorting through the implications right now. Unfortunately, I suspect a number of freelancers will end up with less work from us as a result of the 35-piece limit. I don’t have anything more detailed than that at this point.”
Of the freelancer exemption, San Francisco Chronicle publisher Bill Nagel says, “This was a poorly considered part of the law, likely based on a fundamental misunderstanding of why companies use freelancers. There are situations in which we cannot make a freelancer an employee, which inhibits our First Amendment rights as a publication. It also seems odd and problematic that broadcast freelancers are treated differently than their colleagues in print media. Unfortunately, AB 5 will limit opportunities for some freelancers and silence a number of voices in the market. We will, of course, comply with the law.”
Meanwhile, national outlets are remaining mostly silent publicly. The Los Angeles Times — which just negotiated its first newsroom union contract — The New York Times, The Washington Post, The Wall Street Journal and Southern California News Group (which owns the O.C. Register and Los Angeles Daily News) declined to comment. USA Today owner Gannett, which has freelancers at papers in California, and movie website Rotten Tomatoes, which is based in Los Angeles, did not respond to requests for comment.
(A rep for Valence Media — the parent company of THR, Billboard, Spin, Vibe and Stereogum — says, “Our company routinely evaluates all new and existing laws to ensure we are in compliance.”)
If publications do hire a few current freelancers as employees after Jan. 1, those freelancers will likely receive, but are not guaranteed, all the benefits of a full-time worker. “The people that will really be screwed are the people that will fall under the requirements for benefits,” Greg Zbylut, a tax attorney and estate planner at Breyer Andrew, says. Some freelancers might have a SEP-IRA (a retirement benefit for business owners) and their own health care as freelancers only to find “all of a sudden I’m an employee but I’m not working enough hours to qualify for the pension plan and I’m not working enough hours to be required to have insurance provided for me,” he adds.
From a tax perspective, meanwhile, freelance writers who incur expenses to craft their stories will no longer be able to write them off on tax returns, but they will enjoy no longer having to pay the 15 percent self-employment tax.
In any case, press advocates say news outlets will lose diversity in their coverage as publications think twice about hiring California freelancers and the overall breadth of voices diminishes. “The caps, from CNPA’s perspective, was a pretty significant limitation on people’s ability to be fully informed,” says Jim Ewert, general counsel of the California News Publishers Association, which advocated for a journalism exemption in AB 5 but is still looking to change the cap on submissions.
Moreover, several freelance journalists who spoke with THR say that freelancing allows them not only to fill in the gaps of newsrooms’ coverage but to keep working as journalists in an industry with baked-in biases. Newsrooms in the U.S. are predominately white, with 77 percent of newsroom employees identifying as non-Hispanic whites, according to a 2018 Pew Research Center study. While demographic information about freelance journalists is thin on the ground, Upwork and the Freelancers Union’s 2019 survey of U.S. freelancers overall found that 62 percent of participants identify as white, compared with 66 percent in the general working population.
Yolanda Machado, an L.A.-based freelance film critic for The Wrap and writer for GQ, Shondaland and Harper’s Bazaar, says that she’s found people of color only tend to get hired as freelancers: “We don’t get hired by publications, and this is a way to at least get our voices in there while building a résumé.” Machado adds that AB 5 strikes her as ironic given recent efforts to diversify entertainment coverage, including Time’s Up Critical and CherryPicks. “With all the efforts being made to diversify Hollywood and diversity who’s covering Hollywood, this is going to be a huge setback in that too, because this is where we’re employed, as freelancers,” she says.
Kristen Lopez, a freelance entertainment writer who has written for Remezcla, RogerEbert.com and THR, notes that the legislation will particularly impact the disabled writer community. “I’m not just dealing with the concept of freelance in terms of trying to make sure I can pay my bills, but freelancing is really the only job that I can do from home, that I can do without angering the [Social Security Disability Insurance] system,” Lopez says. She adds, “Freelancing allows me to have a job that I can do without affecting my health, without affecting the disability money that I get, which is not a lot, but it balances out with how much I make that allows me to live, not necessarily wealthily, but comfortably.”
Writers who are parents have been particularly outspoken about the law. “Working with a baby at home is easier to do when I have my own schedule to work from, as opposed to a 9 to 5,” says Aaron Pruner, an entertainment journalist and parenting and lifestyle columnist for The Washington Post (as well as a young father).
AB 5’s vague language prevents even the closest observers from understanding the full effects the law will have come Jan. 1. Aaron Colby, a labor lawyer and partner at Davis Wright in Los Angeles, notes that the law does not specify what a “putative employer” is — is it a particular publication, such as Rolling Stone or The San Diego Union-Tribune, or an umbrella organization, like Gannett or Tribune media, that may own it and other publications? In addition, the law does not state whether, if a freelance writer submits more than 35 published submissions, the 36th will fall under AB 5 or all 36 submissions will (35 of them retroactively). “The courts are going to have to figure that out,” Colby says.
In the meantime, as Jan. 1 creeps ever closer, freelancers have scheduled two October meetings with Gonzalez to discuss their concerns. Gonzalez says she is open to new solutions that might improve freelancers’ situation: “If somebody comes up with some idea that makes sense, that puts them in a better position, that makes them happier, more fulfilled, but doesn’t affect other workers, I’m open to that,” she says. Writers are additionally working on scheduling a conversation with the California Labor Federation and are in contact with local Assembly members and senators to see if corrective legislation can be considered for the 2019 session.
Some writers, like Lamare, are seriously considering leaving the state. Others say they don’t have a choice. “Covering entertainment, I can’t really do that in another state: The stories I’m covering are here,” Topel says.
If solutions to freelancers’ complaints come about quickly after Jan. 1, however, AB 5 will be law for a full year before new legislation can go into effect. “Given the impact of the law and the variety and depth of the interests at issue — it’s so many industries that have so much at stake here — it increases the likelihood that there is going to be a challenge,” Colby says. “But companies should still be ready to comply.”