Lawmakers in California recently passed Assembly Bill 5, a piece of legislation which aims to classify workers engaged in the ‘gig economy’ as employees, but a key piece of this new legislation would limit freelance writers, including writers for entertainment and media websites, in California to a mere 35 “content submissions” per year.
Assembly Bill 5 (AB5) was authored by Assemblywoman Lorena Gonzalez and signed into California law by California Governor Gavin Newsom on September 18, 2019. AB5 was initially introduced to battle practices by ‘gig economy’ giants, such as Uber and Lyft, which classified their workers as freelancers rather than employees and thus denied them the same benefits and protections that employees would receive. To this end, the bill replaces a previously used 11-point survey known as the Borello Test to determine whether a worker is an employee or freelance contractor and a with a new ABC Test which examines only three factors:
(1) The individual 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.
(2) The individual performs work that is outside the usual course of the hiring entity’s business.
(3) The individual is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
However, the bill also includes exemptions from employee classification for certain professions, including graphic designers, photographers, and most worryingly freelance writers. For freelance writers, the exemption classifies a contributor as a freelance writer only if they do “not provide content submissions to the putative employer more than 35 times per year.”
(x) Services provided by a freelance writer, editor, or newspaper cartoonist who does not provide content submissions to the putative employer more than 35 times per year. Items of content produced on a recurring basis related to a general topic shall be considered separate submissions for purposes of calculating the 35 times per year. For purposes of this clause, a “submission” is one or more items or forms of content by a freelance journalist that: (I) pertains to a specific event or topic; (II) is provided for in a contract that defines the scope of the work; (III) is accepted by the publication or company and published or posted for sale.
According to The Hollywood Reporter, the 35-submission limit was decided by Gonzalez and her team by deciding that a part-time worker was equivalent to a weekly columnist, halving estimated submissions from a weekly columnist, and then raising it to 35 after pushback from freelancers who considered 25 to be too low. Gonzalez admits that the determination was made with criteria that was “a little arbitrary.”
“Was it a little arbitrary? Yeah. Writing bills with numbers like that are a little bit arbitrary.”
To her credit, Gonzalez also admitted that she is open to developing new solutions to help assist freelancer writers as long as said assistance did not come at the expense of other workers:
“If somebody comes up with some idea that makes sense, that puts them in a better position, that makes them happier, more fulfilled, but doesn’t affect other workers, I’m open to that.”
This provision has many freelance writers worried as it could potentially upset an entire industry. Many writers feel they would not be able to prove that their work “is outside the usual course of the hiring entity’s business,” and thus would inevitably be classified as employees, tying them to one particular organization and taking away freedoms such as flexible schedules and the ability to work from home.
Furthermore, the 35-submission cap could easily be met within a very short time frame, forcing freelance writers to search for more outlets that they have not yet reached the limit at in order to continue making ends meet.
There is still much uncertainty concerning how employers will choose to deal with this new provision when it takes effect on January 1st, 2020. Online media outlets in particular are uneasy with this new bill, as outlets such as Buzzfeed, The Washington Post, Kotaku, and Bounding into Comics regularly employ freelance writers based in California.
Per THR, some companies have begun to sever ties with writers based in California completely, while some new job postings explicitly state that applicants in California will not be considered.