Major New California Freelance Restrictions

As you may have heard, state legislation known as AB5 is poised to dramatically transform freelance journalism in California by limiting how independent writers and photographers can work. The legislature approved the bill earlier this month, and the governor signed it this week. It becomes law on Jan. 1.

Earlier this year, ASJA formed a coalition of 20 associations of creators to advocate for freelance journalists as we face threats here. We have lobbied key legislators and their staffs, formed alliances, and consulted attorneys. We've also spoken out via the media, and -- most importantly -- met twice in person with the assemblywoman behind AB5 (Assembly Bill 5).
 
We helped convince her to add language to AB5 that will allow a limited form of freelance journalism to continue in the state. 

The bad news: Our ability to freelance will be tightly restricted as Jan. 1, 2020. Some freelance writers may be hired as part-time staffers, which can be good or bad (or both) depending on their situation. Others are likely to lose work. And some out-of-state clients may consider us a hassle due to the restrictions and simply blacklist us.

The good news: Remarkably, the bill language could actually make the restrictions moot. 

Here are some questions and answers:

Q: What is this all about?

A: Last year, the California Supreme Court issued a ruling in the "Dynamex" case that tightly limited the ability of California residents -- including freelance journalists -- to work as independent contractors. While publishers generally ignored the ruling, some freelance writers lost significant income when they were immediately blacklisted by an out-of-state publisher.

Check this Columbia Journalism Review story for more: https://www.cjr.org/united_states_project/california-freelancer-dynamex.php

Q: Where does AB5 fit in?

A: A pro-labor legislator introduced AB5 to codify the court ruling and provide exemptions for certain industries to allow their independent contractors to continue working as freelancers. (She believes that workers, in general, should be employees so they can unionize and be protected by labor law.)
This San Francisco Chronicle Q&A is a good explainer: https://www.sfchronicle.com/business/article/AB5-gig-work-bill-All-your-questions-answered-14441764.php.

Initially, the bill didn't provide exemptions for journalists, raising the prospect that freelance journalism would essentially be forbidden. In response, our coalition's steering committee began lobbying the bill's author and other legislators. The steering committee is made up of leaders from ASJA, the National Writers Union, the National Press Photographers Association, the Society of Professional Journalists, and the Society of American Travel Writers.

Q: What restrictions go into place in 2020?

A: Under AB5, freelance writers may not write more than 35 submissions per client per year. If they go over the limit, they must be hired on staff or stop working for the client. Otherwise the client could be sued for "misclassifying" you as a freelancer when you should be an employee. 

Q: What's a submission?

A: We told legislators that many freelance journalists may produce dozens of items in a short time, like 100 photos covering a wildfire or 30 articles and blog posts covering Comic-Con. These kinds of assignments would put us over the cap in a matter of days and severely disrupt our ability to make a living. 

Legislators responded by specifying in the bill that a submission can be more than one story (or blog post or tweet) in certain cases: "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."

Note the wording about "items of content produced on a recurring basis." This refers to regular content such as a weekly column. These items are each considered separate submissions per the cap.

Q: I'm in California but my clients are out-of-state. Do they have to follow this law?

A: Labor law between states is complicated. But we understand that the answer is yes, they do. 

Q: Can AB5 be changed?

A: No. 

Q: What does ASJA think about all this?

A: We're very worried that freelance journalists will lose work. This month, I spoke about our concerns with The Guardian and L.A. public radio station KCRW: https://www.theguardian.com/us-news/2019/sep/11/california-ab5-gig-workers-rights, https://kcrw.co/2Qmi6j6

Q: Is there any way to get out of this?

A: Maybe. The final bill language has a section that allows a "bona fide business-to-business contracting relationship." You can see the section in the bill language here: https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=201920200AB5.

I've talked to a couple attorneys who think this section may apply to freelance writers and allow us to ignore the submission cap elsewhere in the bill. But it's not entirely clear. Please email me if you know California attorneys who can help us interpret the bill and educate our members (and writers at large) about what it means.

Q: Can the state legally restrict our ability to work as freelance journalists?

A: We have raised concerns about two issues:

* First Amendment rights. Publishers and media outlets are not exempt from labor law. However, do our free press rights as journalists supersede limits on the freelance work that we can do?

* Copyright. As freelance journalists, we own the rights to our work by default. If we're forced to become employees against our will, we will lose ownership of our stories. Employers own the work of their employees by default. Could the law be an unlawful "taking" of our ownership of our work?

Q: Will ASJA and its allies sue?

A: Our options are open. We have a proud history of joining important lawsuits to protect writer rights.

Q: What happens now? 

A: I've been ASJA's point person in California regarding Dynamex/AB5 and our representative on our coalition's steering committee. I will continue to monitor the situation and consult with our allies as Jan. 1 approaches. Contact me with any questions. 

Sincerely,

Randy Dotinga 
Freelance Journalist
Board member and Past President,
American Society of Journalists & Authors 
San Diego, Calif. 

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