Stop the Presses: California’s Freelance Journalists Await the Pinch of AB 5

 

By June Bell November 22, 2019
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Richard Procter has some tough decisions to make. The SF Weekly editor relies on as many as a dozen freelance writers for a "substantial amount," he says, of the alternative newspaper's content, including articles and columns about cannabis, film, music and theater. But a California law that takes effect Jan. 1 limits publications from accepting more than 35 pieces a year from each freelance writer, photographer and newspaper cartoonist.

That restriction puts Procter in a bind: He can't afford to add to his bare-bones staff all the freelancers he'll need under the new law, but he can't put out the weekly publication without them. Even if SF Weekly's parent company, San Francisco Media Co., had the budget to hire more writers, many freelancers don't want to give up their independent-contractor status. The paper pays $75 to $125 each for most articles and up to $750 for cover stories.

The limitation on freelancers' work is embedded in the text of AB 5, which aims to provide workplace protections to gig-economy labor—such as Uber and Lyft drivers and DoorDash delivery people—by reclassifying them as employees. The law codifies a 2018 California Supreme Court decision that created a three-pronged test, called the "ABC test," to determine whether a worker should be classified as an employee or independent contractor.

Exemptions for Some

A variety of professions are exempt from meeting the terms of the ABC test, including contracted HR professionals, grant writers, fine artists, manicurists, hair stylists and commercial anglers. Freelance writers, photographers, editors and cartoonists are exempt only if they produce less than 35 works per year for a single client.

The bill's sponsor, Assemblywoman Lorena Gonzalez, D-San Diego, has said that freelancers who consistently provide content to outlets should be staffers with benefits such as paid sick leave and workers' compensation. She did not respond to several requests for comment.

Anxious California freelancers have met with Gonzalez to urge her to spearhead an amendment removing the cap, saying they cherish their flexible schedules and don't want staff jobs. Independent truck drivers have also protested AB 5, and the California Trucking Association recently filed a lawsuit asserting that the new law hurts independent drivers who use their own vehicles and set their own schedules.

Additionally, Uber, Lyft and other gig-economy companies are promoting a ballot initiative that would exempt them from reclassifying their drivers as employees.

What Are Content Submissions Under AB 5?

The law's murky definition of what constitutes content submissions by freelance journalists has left even labor and employment attorneys scratching their heads. It defines a submission as "one or more items or forms of content" that "pertains to a specific event or topic." 

It also specifies that each piece of content produced on a "recurring basis related to a general topic" is considered a separate submission. It's unclear, however, whether a series of articles on the same topic could be considered a single submission under the law.

Procter is taking a conservative approach. "I can't let anyone do more than 35 pieces of work for me in a year," he said. "One way or another, the weekly [freelancers] will do less work for us."

'Devastating'

That's unwelcome news for Zack Ruskin, SF Weekly's cannabis columnist for more than three years. He earns about 25 percent of his income from SF Weekly and SF Evergreen, a monthly insert on cannabis. Restrictions on his work, he said, will be "devastating to my bottom line."

Fellow freelancer Jeffrey Edalatpour has a full-time job with benefits but loves his side gig covering the arts for SF Weekly and Metro Silicon Valley, a free San Jose weekly. "It's exhausting, but I don't want it to stop," the Oakland resident said, noting that the extra income has been helpful while his unemployed partner looks for work.

When the state legislature reconvenes in January, it can revisit the law, clarifying the law's language or removing the submission cap entirely, said Daniel Kitzes, an attorney with Fox Rothschild in Los Angeles.

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Freelancers who have business licenses and contracts to provide professional services could also claim that they fall under the law's business-to-business exemption and are therefore exempt from the 35-article cap, said Jonathan Judge, an attorney with Atkinson, Andelson, Loya, Ruud & Romo in Cerritos.

Gonzalez offers similar advice in an information sheet she recently released in response to freelance writers' concerns. She claims that freelancers who have bona fide businesses and contracts with other businesses are subject to the less-restrictive Borello test. However, courts have yet to interpret AB 5's language.

"We're getting all these questions, and there's no easy answer at this point," Kitzes said. "Almost anything that people do, they're going to run a risk. It's going to be a risk-tolerance question."

June D. Bell, who is based in the San Francisco Bay Area, is a regular contributor to SHRM Online.

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