Did California Just Kill Freelance Writing?
A look at the implications of Assembly Bill 5.
California’s recently passed Assembly Bill 5 has inadvertently caused a bit of a stir among publishers and freelance writers. Created in order to help provide workers in the gig economy with some form of protection by limiting the classification of workers as independent contractors, it may affect freelance journalism in unexpected ways.
Under the bill, which becomes law in January 2020, workers must pass certain tests in order to be classified as freelancers. If those tests are not met, companies must classify the workers as employees and offer them competitive wages and benefits.
The bill is aimed most specifically at rideshare companies Uber and Lyft as well as delivery companies like Doordash, but it definitely affects every business that is app-based.
These and other newly minted businesses are classified as part of the gig economy, which is defined by Dictionary.com as “a labour market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs.”
Freelance writers have been part of the gig economy when it was a small part of the total employment picture. The use of freelancers has been baked into the magazine business model, for example. Magazines typically had staff writers who wrote certain parts of the magazine, while the remaining content was contracted out to freelance writers.
With the consolidation and poor business of the publishing industry as more publications went out of business or became internet-only ventures, the balance tipped towards freelancers as publications reduced staff to skeletal levels.
When the internet first became a big part of the business world and many writers were being hired by companies like Google, AskJeeves, and Yahoo! to provide regular content the companies made sure to legally qualify them as independent contractors who were ineligible for any of the benefits or protections as employees.
In the early 2000s, I worked as the Classic Jazz Guide at then-fledgeling startup About.com. Our contract with About.com clearly stated that we were independent contractors and that we were without recourse with regard to any benefits or payment that wasn't explicitly stated in our contract.
While our freelance status was never in question, there were issues regarding the calculations of payment owed that resulted in a number of Guides (myself included) bringing a lawsuit against the company. Eventually, the suit became a class action and was later settled by About. But at depositions and in court documents, writers were asked many times to confirm their status as independent contractors.
Which simply reminds workers that these classifications, rules, and laws are important and have real consequences in people’s lives.
It appears that by attempting to carve out an exemption for freelance journalists, Assembly Bill 5 has created a grey area in which many freelance writers believe that they will not be able to write as much for certain publishers making their business more difficult.
The new California law allows writers to be hired up to 35 times for separate content submissions throughout a year. That sounds OK until one considers local publications where there may be someone who writes a weekly column on leisure activities, or real estate, or wine, or any one of many topics that a freelancer may be hired to write. That could easily create 52 or so separate content submissions in a year.
Larger sites, including news content aggregators, sometimes have editors write the longer, featured stories while hiring freelancers to write the individual news hits. Writers providing this type of content can easily hit 50 content submissions within a month. It’s important to note that the biggest concerns are journalists and writers who are frequent contributors to news media brands because these are most likely to exceed the 35 submission rule.
But the only way the law gets enforced is by the state or local government bringing a lawsuit against the company involved, claiming they are misclassifying employees as independent contractors. That seems fairly unlikely in the case of localized media that simply contracts a writer frequently because they like their work.
According to this Columbia Journalism Review article:
“Catherine Fisk, a professor of labor law at the University of California, Berkeley, says the 35-byline rule is an attempt by the legislature ‘to distinguish between people who are really, effectively, a staff writer and people who are truly freelancers.’”
That’s always been difficult to establish by any hard and fast rule, varying instead by industry and platform. With regard to freelance writing, writers have been independent contractors when the company doing the paying said they were.
The law was clearly passed to take on the largest gig economy drivers at the moment: Uber, Lyft, and a handful of food delivery services like Doordash, and I’d expect to start seeing lawsuits in these instances fairly soon.
There are definitely gig workers who would appreciate being labelled as employees and given full working benefits, but there are indications that around 75% of the gig economy workforce is there by choice and wants to continue to be classified as an independent contractor.
That’s probably even truer among freelance writers, many of whom left full-time jobs in order to work from a location of their choosing, at hours that are beneficial to them, using online platforms to gain and perform project work.
In a Forbes article, Diane Mulcahy, who writes about independent work and the gig economy, argues that it’s not terribly likely that the California law will have a tremendous effect on any employers if the outcome in Massachusetts is any indication. The state enacted the same law as California a decade ago, and the classification of employees for large gig economy companies like Uber and Lyft hasn’t changed.
In Massachusetts as in California, drivers wanting to be classified as employees have brought class-action lawsuits against Uber, and in both states, the cases were settled with the drivers maintaining their independent contractor status. It seems unlikely that many freelance writers will be interested in suing the companies that pay them to write on a regular basis in order to become full-time staff writers.
Mulcahy also points out that the cases are difficult for the state to win largely because the test used to determine whether a worker is an independent contractor is hard to pin down and companies can manipulate the criteria. In addition, she argues, California already possesses many administrative tools to challenge specific companies and their classification of workers.
Still, The Hollywood Reporter has already reported cases of (unnamed) media outlets saying they will curtail work with California-based freelancers and states that the publication “has additionally reviewed several job notices in transcription, blogging and SEO writing that has explicitly stated that California freelancers will not be considered.”
A group of California freelancers has organized and won meetings with the bill’s author, Lorena Gonzalez to try to mitigate what they see as disastrous consequences for California’s freelance writing community.
In the words of Nathan Cambridge, a freelance L.A.-based sportswriter, “It feels like the state of California has beef with Uber and we’re caught in the crossfire.”