October 17, 2019
According to a 2018 study conducted by Gallup, approximately 36% of all American workers, or roughly 57 million people, participate in the gig economy either as a primary or a secondary job, including thousands of freelance writers, journalists, photographers and other content creators.
While U.S. companies have legitimately used freelance workers for decades to supplement their regular workforce, since the 2008 recession, there’s been a flood of “wage and hour” litigation alleging some businesses have tried to skirt federal laws on minimum wage, overtime, health benefits, sick and vacation days, by improperly misclassifying certain employees as contract workers as a way to improve the companies’ profit margins.
This culminated in an April 2018 ruling by the California Supreme Court on a class-action lawsuit against Dynamex Operations West Inc., a package and document delivery company that reclassified its delivery drivers as independent contractors rather than employees. The ruling held that a company cannot classify someone as an independent contractor unless it can demonstrate that the worker:
“When a worker has not independently decided to engage in an independently established business but instead is simply designated an independent contractor … there is a substantial risk that the hiring business is attempting to evade the demands of an applicable wage order through misclassification,” Chief Justice Tani Cantil-Sakauye wrote in the decision.
Following the ruling, California Assemblywoman Lorena Gonzalez introduced AB 5 to amend California labor laws designating that any worker hired directly by an organization is an employee, unless he or she meets all three criteria above. We applaud California’s goal to protect workers from exploitation and being denied the benefits and protections employee status provides. Unfortunately, neither the Dynamex ruling nor the original language of AB 5 considered the thousands of California freelance writers, authors, photographers, graphic artists, and other creators who work as independent contractors.
While there’s no doubt many professional writers would prefer the stability and benefits that employee status confers, most have no alternative but to write on a freelance basis. Book authors regularly supplement their book earnings by writing articles, stories, poems, book reviews, and commentary in various online and print periodicals, whose business models depend on publishing a continuous mix of different voices, perspectives, and literary talent, which presents a challenge in hiring a contributing author as an employee. Other content publishers such as newspapers and online news sites simply lack the budgets to hire large numbers of full-time creators, as evidenced by the layoffs of more than 3000 journalists earlier this year.
To that end, American Society of Journalists and Authors led 20 writing and artist organizations, including The Authors Guild, in a loose coalition to help educate and persuade the California legislature that the new law as originally written would severely hamper the ability of writers and other creators to earn a living.
After several months of meetings and negotiations with Assemblywoman Gonzalez and others, the coalition convinced lawmakers to carve out a partial exemption for writers, editors, journalists, and photographers. This exemption allows business and nonprofit entities to hire freelance “creators” to provide content submissions up to 35 times a year. The coalition persuaded legislators to expand the definition of “content submission” so groups of articles or photos count as one submission in certain situations, such as coverage of an event or specific topic.
For example, if you take 100 photos about the impact a hurricane has on a community for a news site or write a 15 blog posts for a client about “novels written by first-generation Americans,” those count as a single submission towards the annual cap of 35. While we were hoping to secure a blanket exemption like other freelance professionals such as marketers, accountants or lawyers have, we believe this is the best deal we could secure at this time.
While it is rare that a fiction writer or poet will ever place more than 35 pieces in a single online or print publication in a year, freelance journalists, such as weekly columnists, likely will be adversely affected. Please note that this rule applies to writers based in California even when working for out-of-state companies; publications hiring CA-based writers must comply with AB 5 with respect to your work performed on or after January 1, 2020, when the law takes effect.
New York State, home to a vast number of “gig workers,” is considering similar legislation. The Authors Guild will be watching very closely to see if such a bill is proposed. If so, we likely will reach out to past coalition members to fight for the same or better terms for writers and other creators.
We thank Randy Dotinga of the American Society of Journalists and Authors for first calling our attention to this situation and coalition leaders at the National Writers Union, Society of Professional Journalists, National Press Photographers Association, Society of American Travel Writers, and elsewhere who spent many long hours negotiating the exemption on behalf of writers and other creators.
Click here to view the final version of AB 5.