Assembly Bill 5, or AB5, ripped through the careers of California freelance journalists much like wildfires churn through the Golden State, turning trees and bushes into plumes of ash.
I am one of the lucky ones, whose freelance career has been damaged, but not completely destroyed – yet.
Supporters of the California law known as AB5 say it’s necessary to help reclassify misclassified workers, but it also forces many freelancers – at least those not on a long list of exempted fields – to be hired as W-2 employees if they don’t meet specific requirements under the law’s Depression-era ABC test:
“(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
(B) The person performs work that is outside the usual course of the hiring entity’s business.
(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”
“When I heard about AB5, I knew that meant freelance writers lose their careers,” said Kim Kavin, an independent journalist who spearheaded an effort to fight off similar legislation in New Jersey (S863) and also helped to create the Fight for Freelancers Facebook group.
The problem for freelance journalists is the B prong of the test. Journalists create news stories for news outlets. Those stories are part of the usual course of business for newspapers, magazines and broadcast outlets. It doesn’t matter if you’re a sole proprietor, an LLC or a business.
The law does provide a limited exemption if you are a California “freelance writer, editor, or newspaper cartoonist” or “photographer or photojournalist.” Under the original law, you were limited to 35 stories per outlet per year.
That meant if you had a weekly column for your small local newspaper, that paper would have to either limit you to 35 columns per year or would have to go through the process of hiring you as a W-2 employee so you could continue writing the column. Small weeklies on tight budgets can’t afford this.
Sports cartoonist Jim Thompson had a weekly cartoonist column with the Los Angeles Times for the past couple of years.
“I had zero interest in being employed. I like the freedom of freelancing,” said Thompson, who has a full-time career as a litigator.
But at the end of last year, his editors told him that they didn’t like AB5 , but it was the law, so they would try to pace his columns so he’d fall under that 35 cap at the time.
Thompson said the selection of that random cap is “an absurd way to legislate. It’s arbitrary. It’s capricious. It’s stupid. So when 35 hit, my editor tried to convince his higher-ups that they should put me on part-time until the next year, when they were convinced that AB5 would be repealed or changed. That didn’t work.”
Thompson lost the regular freelance gig. The 35 cap was removed this month, but it’s unclear whether Thompson will be able to get his gig back.
He said he’s lucky because he doesn’t rely on freelancing to pay his bills. He’s a full-time lawyer who does newspaper cartooning on the side.
Others who have columns at small newspapers have reported losing their columns or being cut back to come in under the law’s cap.
Richard Reeb writes a regular column for the Victor Valley Daily Press and its sister newspaper. It’s his retirement gig after decades as a political science professor.
“It’s a disaster,” Reeb said of AB5. “It’s obviously class-based legislation, meaning that the unions wanted it so they could strike at Uber and Lyft.”
And that’s how many stories have covered AB5, as a way to help exploited workers at such app-based platforms as Uber and Lyft. In the shadows of that coverage are the freelance journalists, graphic artists, musicians and even mall Santas who were also swept into the AB5 net, even if they wanted to remain independent freelancers. Those opposed to AB5 have amassed a list of more than 300 types of freelance careers impacted by the law.
The American Society Journalists and Authors and the National Press Photographers Association filed a constitutional lawsuit to try to stop AB5, which limits journalistic writing, but not marketing writing. A California superior court judge ruled against that lawsuit, but it is making its way through the appeals process.
The California state legislature passed a bill this week that helps to “fix” AB5 by removing the 35-story cap for writers and photographers, among other changes. The bill was signed into law by California’s governor. It does not specifically include an exemption for audio or television journalists, but at least one attorney thinks that audio and video journalists can argue they fall under the “content creator” exemption, but it’s unclear whether stations and outlets and their attorneys will agree with that argument.
An amendment to throw out AB5 failed the California Assembly earlier this summer, largely along party lines. Companies like Uber and Lyft are fighting the law with a ballot measure to get app-based platforms removed from the law, while California’s attorney general and the mayors of several cities have sued the platforms to force them to comply with the law.
For Los Angeles-based tech journalist Dave Johnson, it didn’t take long to feel the impact of AB5. Johnson returned to freelancing at the start of 2019 after a layoff left him in an iffy job market as an older worker. He rebuilt his freelance job network through the year and got to a point where he was happy and comfortable with the freelance lifestyle.
“By the end of the year, I had a really good cadence,” Johnson said. Much of his work came for Business Insider, which included many quick-turnaround, shorter stories.
Then AB5 went into law January 1, 2020. His editors at Business Insiders weren’t sure what to do. He stopped hearing from them. A couple other outlets he wrote for regularly told him that they could not work with him or anyone from California anymore because of the law.
“I went virtually overnight from having more work than I could handle to having virtually nothing,” Johnson said. “When I came back from the holidays in January, I was like on vacation because there were very few places I could write for.”
Johnson estimates he lost $6,000 in income in the first few months after AB5 was enacted.
The AB5 exemption regarding journalists is worded specifically to target “writers” and “editors.” I’m a freelance public radio journalist. I’m not a “writer.” So I was not exempt. (I may be now, under an exemption in the “fix” law for “content creators,” but is is ucnlear whether stations or outlets will agree to this, given it is not specifically worded to include broadcast journalists.)
I started 2020 with renewed energy, working on piecing together several sound-rich stories. I hoped that I could just ignore AB5, which started the first of the year, and keep working as usual.
Right before I was about to finish up my stories and right around the time that the coronavirus pandemic led to lockdowns, one of the main media outlets I sell stories to announced that any freelancers doing work would have to become W-2 employees.
That sounds great, until you realize what it entails.
I love the freedom of freelance journalism. It’s a lifestyle I voluntarily opted for after walking away from a local NPR station nine years ago. I get to choose my hours. I get to work on only the stories I’m interested in. I can feed my soul. I can negotiate rates.
As a sole proprietor, I am a small business owner, so I get small business tax write-offs. I can write off the expensive cost of radio gear and editing programs. I can write off health insurance expenses. I have access to special retirement accounts only available to small business owners. I’m in control.
“Every major study, from the IRS to Gallup to ADP research shows 70 to 80 percent of independent contractors want to stay independent contractors. Every single study that’s done says the same thing,” Kavin said. Many of those freelancers are women and people with disabilities, who need more flexibility in their jobs than a staffer job can allow.
With AB5 and with the federal PROact — which contains the same ABC test — all of that goes up in flames.
The outlet I do stories for that is requiring that freelancers become W-2 employees said its attorneys advised them to shift freelancers to W-2 specifically because of AB5.
“You’ll get paid sick days,” said the editor whom I love to work with there.
Another freelancer and I wondered, “How can you take a sick day from someplace if you don’t actually work there?” How would they even track that? You don’t have set hours. You don’t clock in or out. You don’t have an hourly time sheet.
We were told that they weren’t sure how that would work. We get paid per produced radio minute or per story, after all. We are not employees. And on top of that, the law gives the bargaining power to the employer. We lose our ability to negotiate higher rates, as smart independent contractors try to do.
Basically, by trying to fix the misclassification of some California workers, AB5 is forcing news outlets to misclassify freelancers as employees, when they really aren’t. It seems they’re trying to fix misclassification with misclassification.
So I haven’t done a story since February, in part because of AB5 and in part because of the pandemic. It was a double whammy. I still have a part-time gig as an adjunct professor at a college and I still host and edit journalism-related podcasts. So I will be fine as I regroup and try to figure out if I need to move out of state in order to keep the freelance lifestyle I’ve cherished for nearly a decade.
Some journalists have already moved out of California, including journalist Mary Kearl, who moved to a more freelance friendly state. She had been told by one of the main publications she wrote for that they would limit California writers to 35 articles under the then-cap, even if they were short, quickly reported pieces.
“I could still easily hit that cap,” Kearl said, pointing out she was making about nine times California’s hourly minimum wage.”
She was worried other publications she did work for would follow suit.
“I found myself questioning why I was considering living full time in a state with unaffordable housing that wanted to limit my ability to be the main breadwinner for my family of three and take away my flexibility to work from home, on my own hours, and spend time with my husband and child,” Kearl said.
She’s ended up in Maine, where she has family connections.
Some print and online journalists have reported being blacklisted by outlets because they are from California. Freelance job listings are showing up that specifically say they will not work with freelancers from California or other states with similar legislation in the works.
Organizations just don’t want to risk having them do their normal 1099 work and they don’t want to go through the extra cost of hiring freelancers as W-2 employees.
The other issue for freelance journalists is the loss of intellectual property. As a W-2 employee, the IP rights go to your employer unless it’s specifically stated otherwise in the contract. That means independent journalists can no longer spin one story into two or three or save up interviews and research on stories if they want to write a book in the future.
Like a wildfire, efforts to mandate the ABC test are spreading. Freelancers in both New Jersey and New York were able to fend off similar laws. Other states are pushing similar measures, including Illinois and Washington state. Massachusetts has a less restrictive version of the law on the books, but doesn’t really enforce it.
But trouble could be brewing for freelance journalists and writers on the national front.
In February of this year, the House of Representatives passed the Protecting the Right to Organize Act, known as the PROact, national legislation that includes the same wording as California’s AB5.
“At first we thought someone was confused or made a mistake,” Kavin said, speaking about when she first heard about the PROact’s inclusion of the ABC test. “It’s terrifying because not only is it the California version of this ABC test that is so harmful to so many people, including freelance writers and editors, but it doesn’t have a single exemption.”
The bill is unlikely to pass the Republican-controlled Senate, but it still has freelance journalists concerned. It’s a central part of Democratic presidential candidate Joe Biden’s campaign. He tweeted his support for it after the House passed it.
“Rebuilding the middle class and ensuring that this time everyone comes along starts with one word: unions. That’s why I look forward to signing the #PROAct as President. Congratulations to the House and labor movement for passing this landmark bill,” Biden’s Twitter message read.
Biden also supported AB5.
“My hip pocket, fallback plan is ‘Well, I can always leave California,’ right?” Johnson said. “No, if we have a federal law that just mimics AB5, then we’re screwed… It’s really, really worrisome.”
Johnson, who eventually worked out a W-2 deal with one of his lost clients for a little bit less money under AB5, said he’s amazed there are so many representatives who are “completely, probably willfully ignorant of the impact that it’s having on real people’s lives.”
Many freelancers are asking for any such legislation to simply include the IRS test instead of the ABC test. The IRS test was written in the 1980s and has been continuously updated since then to keep up with changing technology and the workplace landscape.
“The IRS test can catch exploitation without destroying the rest of us,” Kavin said. “Whereas the ABC test from the 1930s has three questions and if you fail even one of those three questions, you’re done. The IRS test is based on a series of about 60 questions where the regulator can actually go in and look and see what’s actually going on.”
Kavin, who finds freelancing to be better paying and safer in a recession, said the way they fought a similar New Jersey law was by meeting with lawmakers and letting them know the impact and by writing editorials regularly in newspapers.
“When we get in the room with these people, they are not used to meeting with articulate, prepared citizens. And that is who journalists are,” Kavin said. “So use your skills and raise your voice.”
Kavin, who became a freelancer willingly 17 years ago after working as a staffer in newspapers and magazines, said she makes more money and finds it relatively recession-proof with writing jobs spread over several outlets.
Johnson likes the stability, which is called the strength of freelancing.
“There’s inherent power in freelancing,” Johnson said.
And it’s a power that he and others hope AB5 and the PROact don’t take away.