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

Legal Issues

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