California adopted a new law last month that bars specific industries from classifying workers as independent contractors.
Among the soon-to-be forbidden independent contractors are freelance writers and journalists. They will now be limited to 35 paid articles per year.
The bill, predictably driven by the state’s labor unions, is a disaster for just about every industry it touches. But it will make life particularly difficult for writers who wish to remain independent of full-time publications, writers who are between jobs, and writers just looking to make some extra cash on the side.
The purpose of Assembly Bill 5 is predictable, albeit misguided: The state wants to force businesses to hire more full-time employees rather than rely on contractors who will work on a per-assignment basis and without benefits. But what California’s politicos don’t seem to understand is that for many workers in the gig economy, the benefits of independence outweigh the benefits of a full-time job. The success of the gig economy and the general satisfaction that Americans seem to have with it illustrate a desire on the part of employer and employee alike to circumvent the strictures and burdens of traditional, formal employment to which busybody lawmakers are constantly adding.
Freelance writers, for example, enjoy the benefit of not being tied to a specific publication, its office, or its hours. They pitch to any publication they choose and work from home or the coffee shop down the street at any hour they choose. This kind of flexibility is invaluable to some people — for example, young moms who want to stay in the business while at home, writers trying to juggle different jobs to meet the bills, or young journalists trying to break into an industry that lacks the means to hire new talent as it adjusts to the bleak new media landscape.
Limiting writers’s ability to tap into this flexibility will harm freelance journalists and the publications that rely on them, and it won’t cause them to hire more journalists full time. The core of the new law is a three-pronged “ABC test,” which is used to determine who is and isn’t a freelancer. The “B” step is particularly tough for journalism because it prohibits employers from contracting out work that is inside “the usual course of the hiring entity’s business.”
This means that a publication cannot claim an exemption when hiring freelancers to write stories that a full-time staff writer could handle. Checkmate.
The writing cap itself is absurd. As a college student interested in a long-term writing career, I freelanced constantly and pitched anywhere from five to 40 pieces per month. And I was just a student. Most full-time freelancers can publish hundreds of stories per year. Nathan Cambridge, for example, works as a freelance sports writer in Los Angeles and covers local high school and community college sporting events for three different papers in the area. He told the Columbia Journalism Review that he averages about 59 stories per year. In 2013, he hit an all-time high of 103.
“In an ideal world, the company would recognize the value of my content and think, ‘Rather than not being able to use this person anymore, I’ll give them a job,’ but that’s not the world we’re in with newspapers,” Cambridge said. “What’s going to happen is, I’m going to hit 35 and they’re going to stop giving me assignments.”
Even if full-time freelancers write just one article a week, that’s 52 articles a year. So why the 35-story cap? Because the California Labor Federation bullied its way into the negotiating process, screwing over independent writers in an attempt to bolster its dying union and the dying publications that actually have unionized writers. But among the many problems with AB 5 is that it fails to take the nature of modern journalism into account. Papers, magazines, and online publications attempting to adapt to the new media landscape often can’t afford to retain large newsrooms. Instead, they depend on outside writers who will work for less in exchange for additional flexibility. To cut publications off from freelancers is to make it that much harder to put out content. That means that publications will generate less revenue, hire fewer staffers, etc.
The state had its own reasons for passing AB 5. Forcing businesses to classify independent contractors as employees will, in theory, fatten up those payroll taxes, which means more money for the state. In application, however, businesses aren’t going to put freelancers on their payrolls; they’re going to cut ties with them. And publications in other states will start looking for freelancers outside of California. Indeed, this began to happen almost immediately after the 2018 Dyanmex decision, which provided the legal basis for AB 5.
The bill is just another example of the elitism oozing out of California’s legislature. Politicians like Democrat Lorena Gonzalez, who spearheaded this project, think they know more about journalism than the men and women who have worked in the industry for decades. No wonder the state doesn’t think twice before telling writers who they can and cannot work for, what they can and cannot write, and how often they can publish their work, if at all.
