Bad Laws And The Best Of Intentions: Law Designed To 'Protect' Gig Workers May Destroy Journalism Freelancers

from the bad-ideas-done-badly dept

For years there have been arguments about the whole "gig work" economy, and how the various "gig workers" should be classified. Specifically, it historically came down to a question of whether or not they should be seen as contractors/freelancers or employees. Of course, the real answer should probably be "neither" and there should be a different classification altogether (if we must classify them). However, following a California Supreme Court ruling that found that the so-called "ABC Test" should be used for determining employment, California pushed for a law codifying that rule, which would, in theory, force tons of companies to reclassify contract/gig workers as "employees." Governor Gavin Newsom signed the bill into law last month with a signing statement that claimed it was to combat the "hollowing out of our middle-class..." and suggesting this will somehow help workers.

Of course, there's what politicians say, and what their bills will actually do. And, so far, this bill, AB5, is looking like it will be a complete and utter disaster. First of all, on the side of gig workers for companies like Uber/Lyft/etc., those companies have already made it clear that they don't think the law applies to them, even though they were the kinds of companies most often cited when discussing the law. On top of that, they're pushing for a ballot measure that would effectively exempt them from the law even if it does apply to them (we've already discussed in the past just how ridiculous California's ballot measure procedure is...).

So, there's a damn good chance that this law won't come close to impacting the types of workers everyone was told it was designed to benefit. Instead... who it might hurt most are... journalists. A huge part of the journalism world works with freelance journalists, and they're now all realizing that the law may make journalism freelancing close to impossible. The author of AB5 had an apparently arbitrary and nonsensical standard applied to the bill concerning who would no longer qualify as a freelance journalist: anyone who writes more than 35 articles per year for a publication.

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.

That... is not good. When the lawmaker herself is admitting the process was effectively picking a number out of thin air and then making arbitrary adjustments. That's bad. And journalists are quite reasonably freaking out:

The author of the bill, Lorena Gonzales, has been responding on Twitter aggressively defending the plan. She eventually felt enough pressure to admit that she's open to change... but that they can't be put in place until after the law goes into effect in January.

Of course, that doesn't ease any of the concerns of tons of journalism freelancers, especially in California, who are completely screwed by this "arbitrary" standard that completely messes up their ability to be journalism freelancers. Also this comes after she retweeted someone calling one of the freelance journalists calling out the problems of this bill "a selfish piece of shit."

There are, clearly, good intentions behind this law. The concern about exploitation of workers by companies -- especially giant multi-billion dollar operations -- is a legitimate concern. But, as with so much that happens when you get politicians trying to write legislation without truly understanding what's happening, you get an end result that that doesn't solve the actual problem of exploitation, and only serves to make life worse for people who have the least power in the situation in the first place.

Filed Under: ab5, abc test, california, classifications, freelance, freelancers, gig economy, gig work, jobs, journalism, lorena gonazalez


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  • identicon
    Anonymous Coward, 21 Oct 2019 @ 10:53am

    I've been hearing for years now that the gig economy is the future.

    What a dreadful future it is.

    reply to this | link to this | view in chronology ]

  • identicon
    TheDumberHalf, 21 Oct 2019 @ 11:18am

    More than we know?

    Are there other careers affected like the food industry, tutoring, child/disability/elderly care, college sports, grad students, the entertainment industry, etc? I'm curious to know how bad this really is.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2019 @ 11:21am

    Journalists aren't the only ones concerned about AB5. Musicians are worried as well and very concerned on how it might effect them.

    A friend of mine owns a well known recording studio in LA. He is worried that the law could identify him as the "employer" instead of who commissioned the work, the producer, the "band", or a label.

    If CA goes the direction of "maximum stupidity", I could see a number of studios leaving LA for Nashville or NYC.

    reply to this | link to this | view in chronology ]

    • identicon
      bobob, 22 Oct 2019 @ 10:50am

      Re:

      I think this is nothing but a nonsense claim. A studio can hardly be an emplyer when the studio charges money to customers (i.e., the musicians) for studio time. Musicians pay for services that a studio provides. I'd call this spreading FUD.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 11:40am

        Re: Re:

        What about when the the studio arranges session musicians for a recording session?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Oct 2019 @ 7:46pm

        Re: Re:

        You may want to learn something about the business BEFORE you draw false conclusions. You may also want to lookup the phrase "first call player".

        Usually, musicians do not book studio time. Time is booked by labels, producers, and ad agencies (ever heard of a commercial jingle?). The producer may or may not have musicians they like to work with. If they do, the person may not be available. 99.999% of the time, when the producer doesn't know who they want or their choice player is already booked or out of town, the producer asks the studio to bring someone in. Oops! That sounds like an employer, doesn't it!

        Back in the 70's, I was a second call bass player for a studio in my home town. The first call guy was/is a relatively famous bass player who you have heard on many recordings.

        BTW, I was once "bumped" from a studio gig by one of the best bass players who ever walked the planet -- the great Ray Brown.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2019 @ 11:35am

    Law Designed To Destroy Journalism Freelancers, May Protect' Gig Workers!
    That seems to be nearer the mark!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2019 @ 11:52am

    It is hard to feel sorry when it was the journalist them selves asking for this in the first place. Asking government to regulate a perceived problem away is never going to work out as well as letting the free market come to a solution.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 22 Oct 2019 @ 5:55am

      Re: What free market?

      It is hard to feel sorry when it was the journalist them selves asking for this in the first place.

      It's reasonable to want protection from abuse by employers in a rigged market.

      Asking government to regulate a perceived problem away is never going to work out as well as letting the free market come to a solution.

      If the market is rigged in favour of employers and is emphatically not a level playing field, it's not free and there will be no solution.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Oct 2019 @ 8:52am

      Re:

      "Asking government to regulate a perceived problem away is never going to work out as well as letting the free market come to a solution."

      Yeah, right.
      The so called free market that does not actually exist anywhere except in the minds of those who theorized it in the first place ... and never will exist, it is a model.
      Asking the real market to self regulate is like giving the cookie jar to a bunch of children. For example, I read that an aircraft manufacturer was recently allowed to self inspect their product(s) and it did not work out well.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2019 @ 12:05pm

    There is a touch of irony that the Press is now up in arms about this as it now affects them but before hand they were all for killing the 'gig' economy when it hurt businesses they didn't like and they didn't care if they caused damage to the people who were happy with the freedom of their gig economy job.

    Also don't most of the complaints regarding the abuse of gig economy jobs also apply to Freelancers, companies for decades have been pushing employees to take up Freelancer/Contractor/Self-Employed status to save money and get around employment laws.

    I wonder how many of those Freelance Journalists should already be classed as Employee's under the law? (Or how similar their status to an Uber worker is).

    reply to this | link to this | view in chronology ]

  • identicon
    bob, 21 Oct 2019 @ 12:57pm

    why?

    Why couldn't she change the law before it's passed. Just halt the process fix it and restart at whatever point is required so a bad bill doesnt become law.

    I admit doing a halt might force the bill to start all the way at the beginning and I have no idea of the time and effort required but isn't that better than passing a bad law?

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 21 Oct 2019 @ 3:09pm

      Re: why?

      Because doing so would essentially be an admission that the bill they are pushing/supporting has a major flaw, not just some tiny little detail that can be ironed out later, and it's not like it's going to impact them so what's the problem?

      That would be my guess anyway.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 22 Oct 2019 @ 1:52am

        Re: Re: why?

        It's hard not to get vibes similar to that of SOPA, FOSTA, Article 13, all the IP protection laws that politicians insist couldn't be changed until they were approved and set in stone.

        Anyone else wants to take bets that once this trainwreck of a law becomes official and people have to pick up the pieces of the livelihood it ruins, Gonzalez then responds with "Well, clearly people wanted it; why else would it become law?"

        reply to this | link to this | view in chronology ]

      • icon
        Wyrm (profile), 22 Oct 2019 @ 8:57am

        Re: Re: why?

        Also, this is a case of "we had to do something; this is something".

        It doesn't matter that it messes the situation worse than it already was. They were supposed to act, so they did the first they could think of instead of studying and understanding the situation first, then crafting a reasonable solution.

        The appearance of action is what matters nowadays, not actually providing solutions.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2019 @ 2:16pm

    Good Write up with Both Sides of the story

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 21 Oct 2019 @ 3:19pm

    'You shut up when I'm talking for you!'

    Nothing like swearing at and/or dismissing people who's jobs are at state thanks to a bill you are pushing to show just how dedicated a politician is to helping those people, and how it's totally not just an ill thought out PR stunt where collateral damage is ignored so long as it provides a cheap 'I DID something!' opportunity.

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 21 Oct 2019 @ 7:48pm

      Re: 'You shut up when I'm talking for you!'

      Well she totally said he wasn't a journalist or a constituent so he didn't matter.

      That whole letting elected people decide who is and isn't a journalist has never turned out poorly...

      reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 23 Oct 2019 @ 8:29am

      Re: 'You shut up when I'm talking for you!'

      Based on the screen cap it looks to me like an unrelated third person was doing the swearing at.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 21 Oct 2019 @ 3:25pm

    politician...

    a person that works 1/2 the year for 2 times the pay a normal person would get...
    AS a public servant..it is supposed to be a temp job..

    Get a hint.

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 22 Oct 2019 @ 12:27am

    Probable conflict on the horizon

    What I predict now is that there will be more than one lawsuit to stop this law from taking effect:
    a) The law cites no valid reason to interfere with commerce, other than "oh noes, the giants are making money and not sharing it with their employees". It would be interesting to learn just how many freelancers contacted Lorena and asked for this bill.
    b) The law pretty much circumvents IRS rules regarding the long-standing "Smell Test". How does the law (and by extension, Lorena) contemplate forcing a person to claim employee status to the State, and independent contractor status to the IRS? That's gonna go over real swell, I'm sure of that. </s>

    I also foresee an out-of-state cottage industry that acts as an intermediary for freelancers. One submits an article to the agent, who tells the freelancer it's for XYZ magazine, but instead it ends up in the hands of the freelancer's usual buyer, Newspaper DEF. Change names, lather, rinse and repeat as often as necessary. Win for the newspaper, win for the freelancer, and a bit off the top for the agent. Enough of these out-of-state operations spring up, and the law becomes superfluous.

    The folks I'd be worried about would be musicians. I can just imagine a bar owner telling a customer-favorite band that they can play no more than 3 nights a week for 3 months, the law says that the customers will have to find a new favorite band... and the bar owner gets to figure out how to survive the ups and downs in beer sales. I'd sure like to see Lorena reason out how this will force Uber/Lyft to pay drivers as employees.

    sumgai

    reply to this | link to this | view in chronology ]

  • icon
    Wendy Cockcroft (profile), 22 Oct 2019 @ 5:52am

    When you get politicians trying to write legislation without truly understanding what's happening, you get an end result that that doesn't solve the actual problem of ____, and only serves to make life worse for people who have the least power in the situation in the first place.

    This is one of those quotes I'll be wheeling out over and over and over again because it applies in so many areas. Politicians are too quick to write legislation in areas they have no expertise in, and won't work with people who actually understand those issues. That needs to stop. Now.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2019 @ 12:50pm

      Re:

      "When you get politicians trying to write legislation "
      Apparently they are bad at writing laws and therefore ask the captains of industry to assist ... and- here we are.

      reply to this | link to this | view in chronology ]

  • icon
    Teamchaos (profile), 22 Oct 2019 @ 8:49am

    I've worked as a IT contractor since '07. Sometimes on a 1099 and sometimes on a W-2. I've made good money and my wife's job provides the benefits. I don't need or want any government protection and I suspect that, like freelance journalists, most workers don't either. There are a few complainers who want to ruin things for everyone, but most who join the gig economy know what they are getting into. We trade flexibility and higher pay for the illusion of job security a traditional job offers. It's not for everyone, and if it doesn't work for you get a traditional job. I'm glad I live and work far from nanny state shenanigans like this law.

    reply to this | link to this | view in chronology ]

    • icon
      Wendy Cockcroft (profile), 23 Oct 2019 @ 4:08am

      Re:

      I don't need or want any government protection

      You'd be screaming for it if the ones you didn't notice were gone.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Oct 2019 @ 12:53pm

      Re:

      "I don't need or want any government protection"

      Ok - cool!
      Although I'm not sure the US armed services will allow an enemy to obliterate you.

      reply to this | link to this | view in chronology ]


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