California Law Limiting Freelance Publication Options Could Face Legal Threat

A California law addressing the discrepancies between independent contractors and contracted workers could spur a legal challenge from journalists before it takes effect in January 2020.

Under the new law, known as AB5, news outlets would face a cap in the number of articles they could publish from an individual journalist. “The publisher must after 35 submissions either hire the writer as an employee or not use their freelance services any longer,” Assemblywoman Lorena Gonzalez (D-San Diego), the measure’s author, wrote on Twitter. “The burden is on the company. If the company violates the law, they’re at fault… not the writer.”

But according to writer Randy Dotinga, who was part of a coalition of groups that spoke to Gonzalez and her office while she crafted AB5, it does not go far enough in allowing freelance journalists in particular to carry on with their work.

“We’re hoping to convince the legislature to fix this next year, when they return,” said Dotinga, who is a former national president of the American Society of Journalists & Authors, or ASJA. “We’re also looking into suing the state on First Amendment grounds, and we’re talking to various groups about launching a lawsuit on behalf of certain groups of journalists.”

The new measure, which covers workers across several industries commonly described as the “gig economy,” was signed into law by California Governor Gavin Newsom (D) on September 18, 2019. Gonzalez introduced AB5 in the wake of a state Supreme Court decision in April 2018; the court ruled in Dynamex Operations West, Inc. v. Superior Court of Los Angeles that in order to classify workers as independent contractors, companies have to show that the contractors are in fact operating their own businesses.

As the San Francisco Chronicle reported:

Both AB5 and Dynamex make it harder for companies to label workers as independent contractors. They use an “ABC” test that says workers are employees if (A) they perform tasks under a company’s control, (B) their work is integral to the company’s business and (C) they do not have independent enterprises in that trade.

Some professions — doctors, psychologists, graphic designers, veterinarians, barbers and hairstylists, marketers, and real estate agents, among others — received full exemptions from the law.

Freelance journalists (defined as “a freelance writer, editor, or newspaper cartoonist”) received a partial exemption with the annual cap of 35 published stories per outlet; however, groups of stories filed from the same event would not be counted separately. According to Digiday, an early version of the bill set the cap at 25 published pieces per year. Dotinga said that his coalition group asked Gonzalez to set the limit at 52, to accommodate freelance columnists running one piece a week through a given outlet. Larry Goldbetter, president of the National Writers’ Union, told us in a separate email that his group along with others advocated for a cap of 50 articles.

“Was it a little arbitrary? Yeah,” Gonzalez told the Reporter. “Writing bills with numbers like that are a little bit arbitrary.”

Dotinga, who is still on the ASJA board, told us that Gonzalez believes that news organizations use freelancers as a means to threaten staff position and unions.

“She said that the idea that someone would work even an hour a week every week for a client and not be on staff makes her sick,” he said. “She feels that workers get the best protection when they’re on staff because they’re protected by labor laws as employees.”

A new wave of discussion concerning the law picked up traction online after a series of tweets from reporter Yashar Ali, who said that Gonzalez “launched a direct attack on press freedoms with her bill.” He added: “She should be ashamed of herself, but knowing her, shame is not a sensation she’s familiar with.”

Gonzalez later responded, “Yashar isn’t a journalist, he’s not a constituent (he lives out of state) and started by personally attacking me. But, ok.” Her husband Nathan Fletcher, a member of the San Diego County Board of Supervisors, called Ali “a total asshole without any grasp on the facts.”

Gonzalez and Dotinga also got into a disagreement online when he highlighted a Hollywood Reporter story saying journalists were “freaking out” over the legislation.

“Randy, at least be honest with your colleagues. You were very involved with this,” Gonzalez responded. “Multiple meetings with me & staff, language , etc. For months. Maybe you didn’t get everything you asked for… but by the end you and others ok’d it. It’s disingenuous to pile on now.”

“This is all correct except for one important part: I never OK’d it,” Dotinga wrote back. “Neither did our coalition. We never supported the cap of 35 submissions per client per year. If we got a 52-submission cap, as we and the newspaper industry asked, I would have supported the bill as a compromise.”

Other journalists have already criticized AB5 since it first passed in the state legislature. Stephen Buel, editor of the East Bay Express in northern California, said in an op-ed that small news organizations like his own should not be subject to the same regulations as heavily-criticized companies like Uber or Lyft:

Freelance journalists enable publishers to maintain a diversity of voices. Some of our freelancers write primarily about Richmond. Others cover visual art. Others focus on hip-hop, movies, homelessness, or police abuse. AB5 threatens this diversity. Similarly, a small-town weekly might employ a single person to cover cops, courts, and city hall, but rely upon freelancers to write features, preview events, review restaurants, profile residents, attend school board meetings, cover high school sports, and write columns about society, religion, pets, or whatever.

Chronicle publisher Bill Nagel also opposed the law from the standpoint of a larger publication, telling the Hollywood Reporter that he felt it was poorly considered and likely based on a misunderstanding of news outlets and their use of freelance journalists:

There are situations in which we cannot make a freelancer an employee, which inhibits our First Amendment rights as a publication. It also seems odd and problematic that broadcast freelancers are treated differently than their colleagues in print media. Unfortunately, AB 5 will limit opportunities for some freelancers and silence a number of voices in the market. We will, of course, comply with the law.

A federal official also weighed in. Federal Communications Commission member Brendan Carr asked on Twitter:

How will freelance journalists — many of whom can’t or aren’t situated to land as employees — get paid for story 36? You can bet it will be far easier for publishers to find multiple ’35 capped’ writers than for freelancers to establish relationships with multiple new outlets.

Gonzalez later said in a Twitter thread that had the bill not been written, the high court’s Dynamex ruling would have been applied to every profession in the state.

“I will continue to work with freelancers, the industry & unions that represent writers to see if there are further changes that should be made, especially for digital quick jobs,” she said. She added:

But, this won’t get resolved just on twitter. And it can’t happen before January. I’m an elected official that tries to be as approachable& accessible as possible. I am truly sorry if you don’t like this law, especially if it causes fear of job loss or anxiety in general. Labor law and big structural change is hard. Let’s keep working to get it right.

Dotinga said that Gonzalez should get more credit for adding the partial exemption for freelance journalists, saying that it would be worse for them to try to work under the model set forth by the Dynamex ruling.

“The problem is, there are many freelancers who are not exploited and don’t exploit anybody and they’re getting caught up in this net,” he added. “And their careers are going to be hurt or ruined, and we don’t think that’s right.”

Goldbetter said the effects of the law would spread beyond California.

“You can’t limit the impact to in-state freelancers as so many people write for CA based publications from everywhere, and by the same token, publishers from everywhere use CA freelancers,” he said. “So the answer is all of our members and the members of the coalition are effected, and they are all expressing concern.”

Update, 10/22/19 11:45 am: Updated with comment from Larry Goldbetter, president of the National Writers’ Union.