Freelance journalists may soon be exempted from the controversial Assembly Bill 5, which went into effect Jan. 1st. The new law codified the California Supreme Court’s ruling in the Dynamex case, which established an “ABC test” for ascertaining whether workers are misclassified as independent contractors when in fact they should be receiving all the benefits of employment.
The law, introduced by Assemblywoman Lorena Gonzalez, has been the target of gig industry behemoths like Postmates, Lyft and Instacart. Freelance journalists, though, are another group that has been embroiled in a fight over AB5. Specifically, the law stipulates that a journalist who produces more than 35 submissions to a single entity should be considered an employee. But that, freelancers say, would effectively kill their career. Media companies, who increasingly can hire reporters and photographers who live and work anywhere, would be less inclined to hire writers from California – or cut them off at the 35-submissions mark.
Gonzalez said she had received extensive feedback from writers, photographers and journalists about how this would impact their ability to make a living, and said changes would be made to accommodate them, while still offering protection against employee misclassification. She indicated that amendments to the law would be introduced that would remove the submission cap. However, contractors still cannot replace employees. Contracts with freelance journalists would also need to expressly indicate the pay rate, payment deadline, individual’s copyrights to the work. Companies also won’t have the right to restrict freelancers from working for more than one outlet, and they can’t mainly perform their work on the business’s premises.
The state was facing litigation filed by the National Press Photographers Association and the American Society of Journalists and Authors. A Los Angeles judge blocked the groups’ effort to stop the state from enforcing the law while their case was pending. The lawsuit hasn’t been dropped at this point, even following Gonzalez’s announcement. An attorney for the freelance reporters and photojournalists said that until the proposed changes are in effect, they will continue to press on with the lawsuit. The journalists are seeking an immediate injunction on enforcement because changes could take many months if not longer, and reporters are losing work right now. Some journalists say outlets have outright refused to hire freelancers from California, thanks to the law.
Some journalists journalists who are opposed to implementation of AB5 for their own industry say they don’t outright think the law is a bad thing. Our Los Angeles employee misclassification attorneys recognize the law was enacted to address a very real problem that is rampant throughout the state. However, many reporters say the law simply missed the mark with freelancers. Many say the biggest thing that was really needed for freelancers were tighter restrictions on when freelancers should be paid. In one example, a freelancer told Courthouse News that she’d only been paid $300 of $4,000 she’d billed private clients since the beginning of the year.
It’s questionable whether AB5 would have any impact on the buyouts and layoffs that are occurring at large media outlets. The number of full-time journalists is only shrinking. That has made freelancing a vital to the industry.
Contact the employment attorneys at Nassiri Law Group, practicing in Orange County, Riverside and Los Angeles. Call 714-937-2020.
Journalists May Get Reprieve From California Contractor Law, Feb. 27, 2020, By Bianca Bruno, Courthouse News Service