Author Of California's Bill That Effectively Ends Freelancing Finally Open To Making Changes After Freelancers Lose Jobs & Lawsuit Filed

from the bit-late,-but-it's-a-start dept

Back in October, we wrote about the disastrous results (even if there were good intentions behind it) of a California law, AB5, that sought to "protect" so-called "gig" workers by forcing companies to hire them as employees, rather than freelancers/contractors. Supporters of the bill, including its vocal author Lorena Gonazlez, argued that it was necessary to protect these workers from exploitative companies and that it was clarifying what the courts had already decided. However, a big part of the problem was the framing of the bill, which more or less assumed that no one could possibly want to be a freelancer or contractor, that everyone must want to be an employee. That's not true. Nowhere was this more clear than in the world of freelance journalism, where many freelancers like the flexibility that comes with the role, and the ability to write for many different publications. Gonzalez's bill, which goes into effect on January 1st, put a ridiculously low yearly "cap" on articles that a freelancer could contribute to a single news site at 35. Any more than that, and the person would need to be reclassified as an employee. Even Gonzalez flat out admitted that the 35 cap was "a little bit arbitrary." Lots of freelancers contribute way more than 35 articles per year (some do more than that in a month), and they rightly saw that this would likely destroy the ability to be a freelance journalist in California.

Gonzalez didn't make things any better by initially attacking some of those who pointed out these problems, even retweeting a tweet calling journalist Yashar Ali "a selfish piece of shit" for pointing out the problems with the bill. And, of course, as the law is about to go into effect, the impact is being felt. The biggest one was Vox-owned sports site SBNation, which has long allowed for sports fans to write about their favorite teams and get paid for it as freelancers. However, last week, Vox announced it could no longer have California freelancers writing for the site. It was going to hire a much smaller number of full time staff, but hundreds of freelance contributors could only continue to contribute for free:

In 2020, we will move California’s team blogs from our established system with hundreds of contractors to a new one run by a team of new SB Nation employees. In the early weeks and months of 2020, we will end our contracts with most contractors at California brands. This shift is part of a business and staffing strategy that we have been exploring over the past two years, but one that is also necessary in light of California’s new independent contractor law, which goes into effect January 1, 2020. That new law makes it impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content “submissions” per year.

Gonzalez initially reacted to this news by saying that "Vox is a vulture," rather than acknowledging that the company was just responding to the law she had written and supported. She did, at the very least, acknowledge that some "legit freelancers lost substantial income," but apparently punishing Vox is more important.

I’m sure some legit freelancers lost substantial income, and I empathize with that especially this time of year. But Vox is a vulture.

Separately, there's some bit of irony in the fact that just a few months ago, Vox itself had a headline celebrating AB5 calling it a "victory for workers everywhere." Except, I guess, the freelancers who worked for Vox.

But it's not just Vox (vulture or not...). CNN is reporting that many other news sites are suddenly changing their practices with contractors, sometimes substantially cutting back on the work they can provide.

...finding talent isn't easy in small markets. Thadeus Greenson, news editor at the North Coast Journal, which covers California's Humboldt County, told CNN Business his outlet has relied on one writer for a weekly column about live music in the area.

"In a small rural county, writers like this are rare, and we now have to scramble to find another one who can write 17 of these columns for us next year," Greenson said. "If we can't find that person, we will have 17 weeks when readers don't get this service."

The music columnist has another full-time career and is not interested in coming on staff, "even if we could somehow fund a position for him," Greenson added.

On top of all that, an organization representing freelancers has now sued the state of California, arguing that the bill is unconstitutional. The the lawsuit was filed by the American Society of Journalists and Authors along with the National Press Photographers Association. The lawsuit says that by specifically making definitions about the press, the lawsuit runs afoul of the First Amendment, which has long rejected attempts to "classify" journalists in any form.

By enforcing content-based distinctions about who can freelance— limiting certain speakers to 35 submissions per client, per year, and precluding some freelancers from making video recordings—Defendant currently maintains and actively enforces a set of laws, practices, policies, and procedures under color of state law that deprive Plaintiffs’ members of their rights to free speech, free press, and equal protection, in violation of the First and Fourteenth Amendments to the United States Constitution

There's also a copyright angle (isn't there always?):

In addition to these unavoidable costs of converting freelancers to employees, Plaintiffs’ members who are forced to become employees because of AB 5 will also lose ownership of the copyright to their creative work and control of their workload unless they are able to negotiate to retain that right

Ownership of the copyright of their work is especially pressing for NPPA’s members, who license their photographs and videos to their clients, but often retain the copyright to such work, which they can then relicense for additional income. Under the Copyright Act, the copyright in a work created by an independent contractor vests with the creator.... However, the copyright in a work created by an employee is usually owned by the employer, unless the employee is able to negotiate to retain that right.

Gonzalez also mocked the lawsuit and has tweeted some nonsense about how companies should just follow labor laws. However, last Thursday, there was a glitter of hope as she actually tried to engage, rather than attack her critics, asking for thoughts on one approach to potentially limit the damage to journalism freelancers:

This is a small step that wouldn't necessarily help most freelancers. At issue is that AB5 includes an exemption that says if it's a small business, such as a sole proprietor, they are not subject to the law. So, in other words, if a freelancer sets up a sole proprietorship corporate entity, he or she could continue to freelance if the publisher contracted with that entity. Of course, that would create significant additional costs for freelancers, as they'll now have to set up a corporation, and handle all of the administrative tasks and costs associated with doing so. This might be the right move for some freelancers, but it's not a real solution.

Again, there are real concerns about ways in which companies might exploit workers -- but it should be pretty obvious that something is wrong if your plan to protect people from being exploited actually is causing them to lose jobs and contractual relationships they were happy with. Part of the problem is do-gooders who think they know better than everyone else, insisting that freelancers must be exploited, when most of them don't appear to believe they are. In that case, you're not solving a problem, you're making one.

Filed Under: ab5, california, contractors, employees, freelancers, gig work, journalism, lorena gonzalez
Companies: vox media


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  • icon
    That One Guy (profile), 23 Dec 2019 @ 10:47am

    'There, these crumbs should shut you up.'

    However, last Thursday, there was a glitter of hope as she actually tried to engage, rather than attack her critics, asking for thoughts on one approach to potentially limit the damage to journalism freelancers:

    Given their previous(and apparently current) response to criticism has been dismissive mockery I'm thinking it would be a good idea to hold off on the party-poppers celebrating their turn of heart. Reading their tweet it looks like they are 'offering' a bare-minimum patch to at least reduce part of the problem in that hopes that that will be enough to appease people, and adding insult to injury one that simply replaces one problem with another by forcing people to jump through a ton of hoops to simply do what they've already been doing.

    If they actually wanted to fix the bill it's trivial: Kill it. When the very people who are supposedly going to be 'helped' by a bill are actively opposing it that's probably a pretty good indicator that it's heavily flawed at best, if not going to make the problem even worse.

    Likewise if they actually want to help freelancers who might be being taken advantage of by companies drop the condescension, insults and 'I know better than those I'm trying to speak for' mindset and talk to those people. Ask them what the problems are and see if they have any suggestions, don't just assume that as a politician you know best and anyone who disagrees with you is wrong by definition.

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

  • identicon
    Anonymous Coward, 23 Dec 2019 @ 12:05pm

    Mturk

    Wouldn't this also make Mechanical Turk no longer legal in California?

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

  • identicon
    Anonymous Coward, 23 Dec 2019 @ 12:13pm

    Just from the title of story, "What the HELL is the matter with these Boneheaded politicians?"

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

  • identicon
    Anonymous Coward, 23 Dec 2019 @ 1:46pm

    I guess if you can't be known for solving societies most pressing issues, then being known for creating some of societies most pressing issues strokes the ego almost as well?

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

  • identicon
    Anonymous Coward, 23 Dec 2019 @ 2:02pm

    A person can become a sole proprietor without becoming a corporation, or filing corporate papers. that is the idea of a sole proprietor. None of the protections offered to a corporation, without most of the fees or paperwork.

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

    • icon
      James Burkhardt (profile), 23 Dec 2019 @ 2:18pm

      Re:

      But if you are a sole proprietor without incorporating, one of those protections you lose is being treated as an independent business under AB 5.

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

      • icon
        Vermont IP Lawyer (profile), 24 Dec 2019 @ 8:50am

        Sole Proprietor

        The article and this comment on the article imply that an unincorprated sole proprietor cannot be treated as an independent business under AB5. I don't understand the logic of this--AB5 includes this text:

        "If a business entity formed as a sole proprietorship, partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: ..."

        I have omitted all of the criteria that must be satisfied for this to apply (see details at leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB5) but I don't see where it says that corporate entities are treated differently than unincorporated sole proprietorships.

        If I've gotten thsi wrong (and I am not anemployment law expert), someone please enlighten me.

        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, 23 Dec 2019 @ 3:29pm

    I say keep it as is!!! This is the social justice they wanted. They just didn't figure it would backfire on them. Well too bad. you lost your jobs. you can thank the Leftist party that controls California are created that garbage. You were all happy about it. Thinking you were going to get HIRED instead of outright FIRED!!!
    I think it's funny as hell and should stand as is. Otherwise, you're defeating the whole purpose of that bill. It was DUMB of course and you couldn't see through your leftist blinders, but you got what you wanted and so you should live with it.

    Give it a chance now to see the Change you were hoping it would create. If you try to change it now, you're not giving it a chance for the bill to do what you expected.

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

    • identicon
      Anonymous Coward, 23 Dec 2019 @ 8:31pm

      Re:

      And people like you is part of why we have such a strong political divide in the US.

      You jumped straight pass the people being mocked for their concerns. You jumped straight pass the actual text of the law. And what did you choose to pounce on? The Political leanings of the state.

      With the way that law was written, it would have come out bad no matter who wrote it.

      A bad law is a bad law, no need to attach anything else to that.

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

    • icon
      Stephen T. Stone (profile), 23 Dec 2019 @ 9:46pm

      Ah, we’ve reached the “not caring about how bad laws affect people to own the libs” stage of things.

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

      • icon
        PaulT (profile), 24 Dec 2019 @ 4:47am

        Re:

        "reached"? That's been the entire platform for some of these people for at least a decade. Probably longer, but that was the point where they stopped pretending to care about anything else.

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

      • icon
        That One Guy (profile), 24 Dec 2019 @ 12:50pm

        Re:

        Someone just needs to use that short-sighted, idiotic mindset to mess around with the buffoons that hold it.

        'You know what the libs really hate? People donating time and money to local charities like food kitchens and/or homeless shelters, and slamming their feet in doors on the days they aren't doing that. Now, I'm not saying anyone should do that, as doing something like that with the sole motivation of spiting some other group would be incredibly childish and petty, I'm just saying someone who did do those things would really drive the libs nuts.'

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

        • icon
          btr1701 (profile), 27 Dec 2019 @ 12:12pm

          Re: Re:

          'You know what the libs really hate? People donating time and money to local charities like food kitchens and/or homeless shelters

          They actually do hate that. A disdain for private charity is a well-known characteristic of the 'progressive' left. To them, any handout that doesn't come from the government is suspect because it doesn't create the proper dependency on the government that keeps leftists in power.

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

  • identicon
    Brandon, 23 Dec 2019 @ 4:21pm

    Fixing the wrong problem

    The reason most people think that being an employee is better than a freelancer/contractor/etc is because of all of the rights and benefits that come from your employment. Ditto with part time vs full time employees.

    If these rights were instead extended to freelancers, and things like health insurance and such weren't tied to your employer, there wouldn't be the concern that employers are avoiding employees to avoid the extra costs.

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

    • identicon
      Anonymous Coward, 23 Dec 2019 @ 10:07pm

      Re: Fixing the wrong problem

      We can not let the stand.
      The stated purpose would align to much with the actual effect, so it's right out.

      /s

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

  • identicon
    stine, 23 Dec 2019 @ 8:06pm

    compare and contrast California's AB5 with Britain's IR35 and their effects on the actual workers.

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

  • icon
    PaulT (profile), 24 Dec 2019 @ 4:46am

    "So, in other words, if a freelancer sets up a sole proprietorship corporate entity, he or she could continue to freelance if the publisher contracted with that entity"

    A loophole which I'm sure will not be exploited in any way in order for the companies targeted by this law to continue to exploit desperate workers...

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

  • icon
    Ed (profile), 24 Dec 2019 @ 7:18am

    How about a law to prevent people from being exploited by Lorena Gonzalez? She's obviously exploiting freelancers in order to bolster her "woke cred". But, she's just another idiot f'ing things up because she doesn't really understand, nor care, how things really work.

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

  • identicon
    Anon, 24 Dec 2019 @ 7:48am

    The Other Side

    The problem is - from the other side - are employers taking advantage of the gig economy to pretend that someone who actually works for them is actually an independent agent?

    Since I don't live in California, don't care, here's my 2 cents: if someone spends the vast majority of their working hours working for a single source, and they are doing something core to that business, then they are employees. A journalist working primarily for a single organization is an employee; working for multiple organizations - a freelancer. (IIRC the Canadian government objective test among others suggests more than 80% of income from a single source) This also affects the employer in other ways - they get to evade minimum wage laws; they avoid health-care costs (not an issue in Canada!); they avoid payroll taxes like Social Security employer portion; they avoid other labour standards like working hours, holiday pay, maternity leave benefits and separation pay rules (some of which, yes, are alien notions in the land of the "Free").

    I agree there are some situations where the law seems to backfire - but anyone who wants to be a critic, suggest how to ensure that the current gig economy does not turn into laissez faire exploitation of workers, the like of which has spawned Uber lawsuits and the scandal over food delivery services stealing workers' tips. The problem in a gig economy, one at a time against big business, is that big business holds all the cards. how do we re-shuffle the deck and deal to workers fairly?

    (Should also point out - the ultimate gig economy is Hollywood, which leads to the Harvey Weinstein exploitation, the ultimate power imbalance; and "Laissez Faire" never was, since the government at the time catered to big employers who could freely union-bust with unbridled force while labour action was subject to oppressive state reaction.)

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

    • identicon
      Julie Meier Wright, 26 Dec 2019 @ 3:49pm

      Re: The Other Side

      So you are implying that if a gig economy driver works for BOTH Uber and Lyft they can be an independent contractor?

      Lorena Gonzalez' background is as a union organizer. She wants everyone to be an employee so that they can be unionized, period.

      I use these ride services a lot and I interview virtually every driver. Virtually all like the flexibility, self-direction and freedom that come from driving when they want and as often as they want. And we the passengers get people driving their own cars -- and thus treating the cars better.

      This is a lousy piece of legislation, period, and ideally will be repealed by a voter initiative, which means that legislators without an ounce of business or freelance experience won't be threatened to lose their livelihood ever again.

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

      • icon
        btr1701 (profile), 27 Dec 2019 @ 12:15pm

        Re: Re: The Other Side

        Virtually all like the flexibility, self-direction and freedom that come from driving when they want and as often as they want.

        Yep. I live in California and use Uber a lot. I have yet to meet one driver who was happy to be reclassified as an employee.

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

  • icon
    Hugo S Cunningham (profile), 24 Dec 2019 @ 1:12pm

    SCotUS has ruled (1995) for freelance writers getting paid

    United States v. Treasury Employees, 513 U.S. 454 (1995)

    The 1995 case has a similarity to California's impending regulation: Freelance writers being treated as acceptable collateral damage in political struggles that did not concern them. In 1995, SCotUS ruled that freelance authors (and presumably artists) enjoy special protections under the First Amendment. Proposed laws that infringe their livelihood are subject to extra scrutiny, to ensure they are tailored to the minimum required to meet a valid government purpose.

    In 1989, there was a political panic about Congressional book deals-- influential Congressmen making bulk sales of mediocre books to lobbyists, as a way to get around income limitations. Congress responded with typical overkill-- a ban on book payments not just to Congressmen and other senior policy-makers, but also to 1,700,000 rank-and-file Federal employees. If your letter-carrier wanted, in his spare time, to supplement his income with paid lectures on local history, he would be out of luck.

    Justice John Paul Stevens wrote the opinion throwing out this ban, far too broad for any reasonable anti-corruption purpose. (He suggested Congress could try again with a bill restricted to senior policy-makers.)

    Justice Stevens specifically rejected an argument likely to be made by California officials-- that free speech can be exercised under the First Amendment even if the speaker cannot be paid. In the real World, a payment ban means less speech. Speakers have to make a living like everyone else.

    "Publishers compensate authors because compensation provides a >significant incentive toward more expression.
    Footnote 14:
    "This proposition is self-evident even to those who do not fully >accept Samuel Johnson's cynical comment: " 'No man but a >blockhead ever wrote, except for money.' " J. Boswell, Life of >Samuel Johnson LL.D. 302 (R. Hutchins ed. 1952)."

    https://www.law.cornell.edu/supremecourt/text/513/454#fn2-1

    California legislators believe the "gig economy" (freelancing) is abusive to broad categories of workers. Under the First Amendment, however, they either have to exempt freelance authors, or tailor special regulations to maximize opportunities for free expression.

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

  • identicon
    Anonymous Coward, 25 Dec 2019 @ 5:54am

    Of course, news agencies outside the United States, like Agencie France Presse are not subject to this law.

    They can hire all the freelancers they want, and California law would not apply to a news agency in France.

    The same thing applies to other major worldwide newspapers.

    The Times of London, Singapore's Straits-Times, Toronto's News&Mail, or the Sydney Morning Herald are not subject to this law, since they are all newspapers outside of the United States, so California law cannot be applied to those news outlets.

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

  • identicon
    Anonymous Coward, 25 Dec 2019 @ 6:04am

    The bad thing about this law, is that prices on everything are going to go up, becuase it will outlaw independent owner/operators in the trucking industry from hauling loads to and from California, because they are indepdent contractors.

    If you are an idependent, you can still do it anyway, you take a route that avoids the California "agrictultural inspection stations". If you are coming from Nevada, just take highway 88 over Carson Pass, there are current no inspection station on that route, and you can get your load in and out, do it icognito

    Never mind the CARB rules, effective Jan 1, that ban trucks made before 2011 on California roads.

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

  • icon
    btr1701 (profile), 27 Dec 2019 @ 12:08pm

    I was fired because of this, too...

    I became a victim of this law as well. I have a full time day job that pays my bills nicely, but until recently I was also picking up some extra income by doing music engraving (for the uninitiated: turning handwritten orchestral musical scores into professionally typeset digital versions) for some Hollywood film music prep companies on the side. It was part-time work-- they only used me when their in-house staff was overwhelmed with work-- and it's something I could do from home in my off-time and make some nice cushion on top of my day job salary. With the recent explosion in popularity of live-to-projection concerts with orchestras around the country performing the scores to classic movies like STAR WARS, RAIDERS OF THE LOST ARK, LORD OF THE RINGS, etc. live while the film is projected to the audience on a screen above the orchestra, this has created a lot of work for the music preparation companies, digging out these old handwritten scores from studio archives and preparing time-synched digital conductor's scores and parts from which the musicians can play.

    Long story only slightly less long: I was recently informed by the companies that I was working with that they could no longer accept work from me due to this new California law that would re-classify me as an employee, something they cannot afford to do.

    So yeah, thanks, Gonzalez. Workers rights, my ass. All you did was cost me a nice little nest egg that I was putting away for retirement.

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


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