Freelance Columnist Suggests Workaround To California's AB5: Submit One Giant, Regularly Edited, Column

from the something's-wrong-with-the-law dept

We recently wrote about the many problems (even if created through good intentions) with California's new AB5 law that will turn many freelancers into employees. As we noted, a big part of the problem is that many freelancers don't want to be employees, and the law will almost certainly backfire, in making companies wary of hiring freelancers in California. The one area we focused in on (though many are impacted) is journalism, where the author of the bill, Lorena Gonzalez admitted upfront that she chose 35 submissions per year as the dividing line "arbitrarily," despite the fact that many freelancers will contribute a much higher number than 35 stories for many publications.

Andy Kessler, who is a freelance columnist for the Wall Street Journal, has a new piece highlighting how silly this new law is, including the fact that it seems based on the assumption that freelancers all really desire to be employees.

Like many independent contractors, I prefer not to be hired as an employee. I don’t want to attend company picnics or sit through mandatory sensitivity training. Shouldn’t I have the ability to choose? Apparently not in California, a job-destroying wrecking ball. On a more serious note, many disabled people or parents with young children would rather work freelance from home than trudge to an office. Retaining more workers directly will send employers’ costs up, up, up.

But Kessler has come up with a... uh... unique workaround so that he can continue his (mostly) weekly column at the Wall Street Journal. Just do it all as one giant submission that is regularly edited:

I could invoke the First Amendment and free speech, but I doubt it would fly. Maybe I could roll out the big guns by telling the court the law restricts my life, liberty and pursuit of happiness. Especially liberty, which to me means, “Stop telling me what I can or can’t do.”

Maybe I should just keep quiet, but I guess that train has left. Instead, I plan to send one giant “submission” to The Wall Street Journal on Jan. 1, subject to updating and editing by me, which they are free to cut into 48 pieces (I do get the Monday holidays off). If that doesn’t work, I’ll claim I’m a psychologist, easing the pain of every lab rat abused by California politicians. After that, I hear Nevada is nice this time of year.

This is all obviously kind of silly, but that's part of the problem. When the law has people looking at these kinds of silly solutions, perhaps the problem is with the law.

Filed Under: ab5, andy kessler, california, freelancers, lorena gonzalez, workarounds


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Oct 2019 @ 3:48pm

    "submissions" has this covered. -- And 35 IS an employee.

    I prefer not to be hired as an employee. I don’t want to attend company picnics or sit through mandatory sensitivity training.

    Fair enough.

    But as usual, only NARROW focus makes this piece work.

    There are thousands who want the assurance and benefits of being employed.

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

    • This comment has been flagged by the community. Click here to show it
      identicon
      Breeding bananas is so complex that few ever try, 29 Oct 2019 @ 3:49pm

      Re: "submissions" has this covered. -- And 35 IS an em

      Free and fair employment, before anyone makes silly gainsaying, depends on a large pool of potential employers, NOT being shut out by crony capitalists, the LACK of Rich people controlling markets, a good strong economy, and so on.

      Main point though is that Masnick NEVER has a thought for ordinary laborers, not even immigrants, as he chose to yet again disdain all such by not mentioning. They don't matter in his world, except that he wants a large labor pool of fairly desperate people so that he can have ten servants around his mansion, instead of only a couple.

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

    • identicon
      Anonymous Coward, 29 Oct 2019 @ 4:45pm

      Re: ... And 35 IS an employee.

      ... many [] people ... would rather work freelance from home than trudge to an office.

      That's called 'telecommuting' these days. Many of us folks with full time jobs do this. Not a valid reason.

      Retaining more workers directly will send employers’ costs up, up, up.

      So will the $15 minimum wage, or any minimum wage for that matter. So will requiring restaurants (and uber!) to pay their staff the full minimum wage instead of forcing customers to pay (and wait staff to expect) tips.

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

      • identicon
        Anonymous Coward, 29 Oct 2019 @ 4:52pm

        Yes, replying to my own comment.

        Telecommuting is still not a valid reason to want to freelance. But other conditions often applied to full time employment may be, such as non-competes, retaining copyrights, flexible work schedule/submission rate.

        Not saying there aren't good reasons to want to freelance. Saying that those aren't some of them.

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

      • identicon
        Anonymous Coward, 30 Oct 2019 @ 4:18am

        Re: Re: ... And 35 IS an employee.

        Wages are a significant contributor to the problem. When a business is unable to attract employees it is not the responsibility of government to provide said employees. Employees are not a commodity.

        Michele Bachmann once proudly proclaimed that we could eliminate unemployment by getting rid of the minimum wage. We also could eliminate unemployment by changing the definition of unemployed. Neither of these does anything to address the problem.

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

    • identicon
      Anonymous Coward, 29 Oct 2019 @ 9:51pm

      Re:

      There are thousands who want the assurance and benefits of being employed

      Did you just argue in support of employment by corporations, blue?

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

  • icon
    Chris ODonnell (profile), 29 Oct 2019 @ 4:09pm

    10 servants?

    I love it when the trolls expose their ignorance. Like 10 servants could ever handle the Masnick Mansion. That place requires a staff of 20, minimum. ;)

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

  • identicon
    bobob, 29 Oct 2019 @ 4:49pm

    Here's a solution. Set yourself up as a corporation that supplies articles to news outlets and pay yourself as an employee.

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

    • icon
      norahc (profile), 29 Oct 2019 @ 7:02pm

      Re:

      Here's a solution. Set yourself up as a corporation that supplies articles to news outlets and pay yourself as an employee.

      Seriously? Then you would have to pay corporate income tax, personal income tax and unemployment insurance along with a few other things I'm probably forgetting.

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

      • identicon
        Anonymous Coward, 29 Oct 2019 @ 8:38pm

        Re: Re:

        There's not really a corporate income tax, profits are taxed and if you wanted to avoid all that you could run it as a pass through corporation and there's no corporate taxes at all to speak of it all just gets treated as income to the business owner.

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

        • icon
          norahc (profile), 29 Oct 2019 @ 10:57pm

          Re: Re: Re:

          https://www.investopedia.com/articles/personal-finance/102115/taxes-california-small-business-basics .asp

          From that article, CA is one of the few states that tax pass thru income to both the business and the individual. Double taxation at it's best.

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

          • identicon
            bobob, 30 Oct 2019 @ 2:13pm

            Re: Re: Re: Re:

            Every choice to earn a living has plusses and minuses. If you want to be an independent contractor, the you are a business which is indepedent of the business contracting you, otherwise the term "independent contractor" is just a synonym for "employee who can be exploited."

            There are benefits to incorporating as well. Your personal assets are distinct from the corporate assets and your personal assets have some shielding from lawsuits that arise from the actions of the corporation and its employee(s), which might be handy. Deal with it.

            If the California definition of "Independent contractor" is less than ideal, (which it most likely is not), the solution is to change it for the better while not abandoning its intent. Somebody had to start somewhere to deal with the abuses of independent contractors not really being independent contractors.

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

        • identicon
          Anonymous Coward, 30 Oct 2019 @ 4:25am

          Re: Re: Re:

          Or you could join the big boys and go get soma a that Double Irish With A Dutch Sandwich goodness.

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

  • icon
    tom (profile), 29 Oct 2019 @ 6:50pm

    Rather then one giant submission subject to 48 separate edits, sign a contract for 1 story with 48 chapters to be delivered 1 chapter per Monday the WSJ is published.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Oct 2019 @ 7:06pm

    Censorship test.

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

    • icon
      PaulT (profile), 30 Oct 2019 @ 1:42am

      Re:

      Yes, your spam is still being treated as spam. You could always apply simple logic to this fact, rather than spamming the site with further messages and acting shocked when your spam never stoped being treated as such.

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

      • identicon
        Anonymous Coward, 30 Oct 2019 @ 10:06am

        Re: Re:

        Subjectively defining which speech should be censored is anathema to a free, open debate.

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

        • identicon
          Rocky, 30 Oct 2019 @ 10:23am

          Free, open debunking

          I don't think you understand the word censor since you apply it wrongly.

          If you think I'm in error, please point to what have been censored.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Oct 2019 @ 7:07pm

    Just like taking out insurance for emotional distress if your favorite team loses by more than the pointspread, for emotional distress, would work.

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

  • icon
    That One Guy (profile), 29 Oct 2019 @ 7:24pm

    No really, keep 'helping'

    When the people you claim to be trying to 'help' find themselves forced to come up with ludicrous schemes in order to work around your 'help' I'd say it's time to admit that while your motivations may have been good(assuming it's not just a cheap PR stunt) your methods are seriously flawed and need to be either re-done or tossed entirely.

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

  • identicon
    Anonymous Coward, 29 Oct 2019 @ 7:41pm

    Newspapers, outside the USA, such as the Sydney Morning Herald, would not have to obey this law.

    So I could see freelancers writing for non US publications where AB5 would not apply.

    Since the SMH, for example, is an Australian publican, they would not subject to this law.

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

  • icon
    Uriel-238 (profile), 29 Oct 2019 @ 7:50pm

    The problem with a workaround...

    Is that it may also work around the solution to the original problem, which is that so many people were being hired and underpaid and underbenefited as freelancers that California decided it's time we can no longer have nice things.

    If there is a workaround and it gets exploited so that Trader Joes aisle clerks can be forced to work as freelancers again, then it's a loophole that California will have to close.

    Unless we find an alternative solution to stop companies from using freelancer rules to cheat labor out of things like health insurance and a living wage.

    I'd say we could nationalize every business that cruelly exploits its employees. But I'm sure there are two dozen workable solutions that are less radical than that.

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

    • identicon
      Anonymous Coward, 29 Oct 2019 @ 8:31pm

      Re: The problem with a workaround...

      And like I said, publications outside the United States, like the Sydney morning herald, are not subject to this law, or any other United States laws.

      When I ran my online radio station, and its associated blog, we used freelancers.

      If it were still running today, and still operating out of Australia, my station and its blog would not be subject to this law.

      And if the state of California had told me how to run a business that was in Australia, I would have told the State Of California to f*** off, and would have told them that California law does not apply to anything in Australia.

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

    • identicon
      Anonymous Coward, 30 Oct 2019 @ 4:28am

      Re: The problem with a workaround...

      "I'd say we could nationalize every business that cruelly exploits its employees"

      I prefer to just let them go out of business.

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

      • icon
        PaulT (profile), 30 Oct 2019 @ 5:14am

        Re: Re: The problem with a workaround...

        Agreed there. If the only way a company can stay in business is by exploiting its employees, you're probably better off without them in the long run.

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

    • icon
      PaulT (profile), 30 Oct 2019 @ 5:13am

      Re: The problem with a workaround...

      "Unless we find an alternative solution to stop companies from using freelancer rules to cheat labor out of things like health insurance and a living wage."

      The rest of the civilised world has found a way to do the former - disconnect healthcare from employment. A socialised medical system means that private healthcare can still be offered as an incentive, but nobody's going without healthcare or facing large copays because they're not employed in the right way.

      Living wage is more difficult, because people have to agree on what that means, and companies use things like zero rated contracts and variable part time scheduling to still screw people, but that's things like UBI are seriously discussed.

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

    • icon
      Cdaragorn (profile), 30 Oct 2019 @ 7:54am

      Re: The problem with a workaround...

      The problem still remains that you're trying to solve problems you pretend exist that aren't really there.
      No one is "forced" to work as a freelancer. There are still plenty of jobs available everywhere that insisting you are being forced is just you not being willing to do what you are perfectly capable of doing to change your situation.

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

  • identicon
    Anonymous Coward, 29 Oct 2019 @ 7:53pm

    Wait. What?

    They first limited the number of actions a freelancer can take before they become an employee? Not fix the broken system itself which forces people to go freelance? The fuck?

    Like I fucking hate the gig economy because I think it is an adaptation into a market of an exaptation against employee abuse that was just a coping mechanism against employer abuse. And now instead of fixing said employer abuse they are just regulating the new market with what amounts to Red Flag laws.

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

  • identicon
    Anonymous Coward, 29 Oct 2019 @ 8:24pm

    The problem is more hard limits than anything else

    I don't know US/Californian laws around contractor vs employee, but (from memory) the principles underpinning the difference in Oz are basically:

    Does the worker have an expectation of an ongoing relationship
    Can the worker subcontract or does the worker have to be the one who does the work
    Is there any requirement for exclusivity or controls on who else they can work for

    Using those principles as a basis, a journalist (or their chaotic evil variant, the columnist) would be likely to be deemed an employee if they are expected to only write for that publication, if they have to do the research themselves, and they are expected to keep writing for that publication (or they expect that they will keep getting work from the publication.

    Yes, it does bring in grey areas, but not as much as you would think, and it leads to fewer perverse outcomes where people have to try to come up with workarounds.

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

    • icon
      norahc (profile), 29 Oct 2019 @ 11:09pm

      Re: The problem is more hard limits than anything else

      I'd say the problem is that the government and people in it think they actually know how to fix a problem, and have the power to make their views into law.

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

      • identicon
        Anonymous Coward, 30 Oct 2019 @ 4:31am

        Re: Re: The problem is more hard limits than anything else

        A huge part of the problem is business with a crap model.
        If your business can not make payroll without government assistance then that business should fold.

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

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 6:03am

    There are 1000,s of people who want to work from home,
    freelance, avoid commutes and traffic jam,s .
    In the era of trump independent journalists are more important than ever,
    if every journalists works for a company or large corporation ,
    it may reduce freedom to report on issues like corporate tax avoidance,
    political donations by companys to push bill,s to limit local government
    broadband etc
    reducing the freedom of journalists to work is a bad idea,
    was this bill sponsored by china or russia ?

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

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 9:11am

    Currently for California a 35 article submission limit should be approximately 34 article above what may be submitted.

    A map of PG&E current power outage may be viewed at
    https://www.sacbee.com/news/california/fires/article236783578.html

    For the uninformed this is similar to a hurricane outage with out the rain.

    No electricity means:
    No Lights. It is dark outside.
    No pumps. You have no running water either fresh or black.
    No gas stations. You are not going anywhere.
    No sales. You are not going to buy anything.
    No AC. It is very hot inside or very cold.
    No computers; No telephones. No working from home.
    No banks. No money transfers. Cash money only if you can even find someone to sell you food.

    Reality could not happen to a bigger bunch of virtual delusional individuals.

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


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