Will This California Law End Freelance Work?
By: Pressland Editors
Tags: Freelancing, Labor, Media, Uber, Journalism

AB 5 is meant to penalize abusive employers like Uber, but it could affect many part-time workers — especially women and people of color.

Pace yourself: California has put a cap on freelance output per publication. The magic number: 35 pieces.

By Rebecca Bodenheimer

Freelance writer Vanessa McGrady is very worried about AB 5, a California bill recently signed into law by Governor Gavin Newsom that will take effect in less than two months. Intended to punish companies who misclassify their workers as independent contractors, the law threatens her small business, built up over a number of years. She’s a single mom whose daughter’s father died this year, and she doesn’t have a lot of backup for childcare — she needs to be available to pick up her daughter from school or stay home with her if she’s sick. In short, freelance work is the only sustainable option for her. “I’ve worked in offices and I’ve never found one that’s truly family-friendly,” McGrady says.

AB 5 was intended primarily to regulate ride-sharing companies Uber and Lyft, to force them to stop misclassifying their drivers as independent contractors instead of employees and provide them with benefits such as health care and paid time-off. Its passage has been hailed as a win for labor rights, particularly because it means ride-share drivers could potentially unionize. Unsurprisingly, Uber and Lyft have said they’ll each put tens of millions of dollars into overturning AB 5 next year.

Despite its primary goals, AB 5 is a sweeping bill that pulls all freelance workers into its net. Given the historic expansion of the “gig economy” in recent years and the pivot across different industries to freelance/contract labor, this law could have massive effects. The Freelancers Union recently released a comprehensive study, “Freelancing in America 2019,” showing that 35 percent of the American workforce (57 million people) engaged in freelance work this year. Even more significant: Full-time freelancers now constitute a whopping 28 percent of the labor force, an 11-point increase since 2014. In addition, California is seen as a precedent state on many issues, and other states — notably New York — might soon see similar bills.

In terms of the specifics of AB 5, a number of professions have been exempted, including doctors, lawyers, architects, and graphic designers — presumably, because they are less likely to be exploited by companies that hire them. But many others — specifically freelance writers, but also musicians, editors, and photographers — now face crippling new limits on their ability to work for themselves. Writers, editors, and photographers will be limited to a total of 35 submissions per year to “hiring firms.”

In other words, a bill that was designed to punish large, exploitative corporations will ultimately harm small business owners, many of whom are already struggling because of the realities of the industries in which they work.

One of the reasons the 35-submission limit is so scary is that, although in traditional journalism (particularly print), it may sound like it gives writers a lot of leeway, digital media works very differently: shorter, non-reported pieces are common and they’re turned around more quickly. So for writers with one or more “anchor clients” — i.e., who write a weekly column or contribute a few pieces a week to a single publication — this limit would be disastrous. Freelance writing is inherently unstable, and the most common advice given to offset the highs and lows is to get an anchor client who can provide stable, ongoing work. AB 5 as written will make it extremely difficult, if not impossible, for California freelance writers to retain anchor clients and achieve economic stability.

Almost immediately, freelance writers identified a major problem with AB 5: the seeming lack of understanding by the bill’s authors about the current media landscape, particularly the extent to which freelance writing has become the norm. In addition, AB 5 is poised to disproportionately harm writers who are women, disabled, and/or face other forms of marginalization. It will also present major obstacles for independent media outlets with small budgets who rely heavily on freelance writers, but who also publish diverse perspectives often overlooked at larger publications.

It shouldn’t be news to anyone that the media industry has been hemorrhaging full-time staff jobs in the past decade as outlets shift from print to online and rely increasingly on freelance writers. A recent Pew Research Center study shows a 25 percent drop in jobs between 2008 and 2018, with a steep decline specifically for traditional newspapers (47 percent).

So far, this year’s job losses are at over 7,200. Vice and Buzzfeed have laid off hundreds of people and/or eliminated verticals, while other outlets have shuttered completely, including Pacific Standard, Splinter, ThinkProgress, and The Village Voice. In May, the entire 161-person staff of The New Orleans Time-Picayune was laid off. The following magazines have ceased print publication and “pivoted” to online only (with an accompanying reduction in staff): Redbook, Glamour, Self, Teen Vogue, ESPN The Magazine, Computerworld, Jet, and Nylon. Just this month, it was reported that newspaper behemoth USA Today could also be phasing out print publication soon.

Other recent news includes Vice’s acquisition of Refinery29 earlier this month, reportedly as a way of adding “female-focused content” to its brand. Ironically, this happened only months after Vice shut down its dedicated feminist vertical, Broadly. This also presumably means Refinery29 will lose some editorial independence. Finally, just this week, Business Insider reported that Bustle Digital Group — which acquired Mic, Gawker, The Outline, and other outlets in recent years — has laid off at least 5 percent of its staff. The media conglomerate also appears to be deemphasizing diversity in the newsroom.

Given media’s current state of crisis — unlike the flourishing ride-sharing industry — it’s hard to imagine why the authors of AB 5 decided to lump together a wide range of freelancers — including truck drivers, translators, photographers, and musicians — when the real goal was to regulate Uber and Lyft. One major difference between ride-share driving and freelance writing is that the former can’t be outsourced to other states, whereas the latter can. And this is where the real threat lies for California-based freelance writers: because the work is done remotely, they can be easily replaced by writers in other states.

Many freelance writers suspect that media outlets won’t want the hassle of working with people who can contribute only 35 pieces a year, or of having to put them on the payroll. They are worried that AB 5 will result in a de-facto blacklisting of California-based writers. In this sense, AB 5 wouldn’t even accomplish what it set out to do (penalize large companies trying to get around paying for workers’ benefits), because outlets would find workarounds to keep from complying.

McGrady stated, “The obviously worst thing about AB 5 is that it’s a stick, not a carrot, for media companies… AB 5 will only serve in taking work away from California freelancers.” Indeed, McGrady has already been notified by a longtime anchor client that they may be cutting back on her assignments.

Even assigning editors have acknowledged that in practice, AB 5 will penalize not large employers, but writers. Healthline’s Sam Dylan Finch tweeted: “For publications concerned about their bottom-line (which is all of them, it’s a struggling industry to begin with)… they’re just going to look for writers elsewhere. And why wouldn’t they? Most simply don’t have the infrastructure to do a mass hire.”

Similarly, Riese Bernard, editor-in-chief of Autostraddle, a popular lesbian-run digital outlet, stressed how difficult this law is for small, independent media outlets: “We’re a queer-owned, women-owned business. We don’t have shareholders, our aim is not profit. We don’t even have a full-time accountant or HR person to handle the extra paperwork involved in AB 5.” Autostraddle’s mission is to allow queer women with different experiences to tell their own stories: “for immigrants to tell stories about immigrants, for trans women to tell stories about trans women, sex workers to tell sex work stories…That’s why we have an enormous pool of freelancers… There’s no feasible way to hire a full-time staff member to represent every identity we need represented.”

These editors’ comments are backed up by a recent op-ed arguing that AB 5 will harm Black-owned newspapers because it reclassifies newspaper couriers as employees instead of independent contractors, which small, minority-owned outlets can’t afford to do.

Beyond the problems AB 5 presents for small media outlets, it will almost certainly hit women and marginalized writers particularly hard. Although there still isn’t enough data on the demographics of freelance writers, a 2016 piece in The Freelancer found that while 37 percent of newsroom staff was female, over 70 percent of journalism graduates were women; this suggests that many graduates have only been able to pursue writing via freelancing. In addition, this 2012 study on various types of freelance work found that 71 percent of respondents were female.

Randy Dotinga, former president of the American Society of Journalists and Authors (ASJA) and one of the freelance writer representatives who negotiated the 35-piece limit with Assemblywoman Lorena Gonzalez, stated, “Our group is roughly 75 percent women, and I estimate that it may be even higher among freelance writers as a whole.”

Taken together, these data points suggest that freelance writers are overwhelmingly female. And while female journalists have less access to well-paying staff jobs, it’s also true that many women, like McGrady, leave full-time jobs and begin freelancing for reasons related to childcare and/or elder care.

Or, like Maressa Brown, they leave staff jobs because of the toxic work environment at many large media outlets. Brown — who recently started a Facebook group for California freelance writers to network and strategize about what to do about AB 5 — had worked on staff for years in New York. She “experienced emotional/mental abuse at almost every job” and “dealt with the threat of constant layoffs,” she says. She expressed being far happier working for herself, “covering everything from parenting to sexual health to celebrity news to astrology… set[ting] my own rates…and be[ing] able to care for my health in a way that was rarely possible and often compromised severely by staff positions.” Now, the 35-submission limit threatens to derail Brown’s career.

Regarding this limit, McGrady made an important point: AB 5 doesn’t make a distinction between long and short pieces (which take different amounts of time to write). “So someone who is submitting three 150-word pieces a month that take 15 minutes each to write is being treated the same as someone who submits three 1,200-word pieces that could take 40 hours a week or more to write.” In other words, if the law’s intention is to prevent exploitation, the limits need to be defined in a more informed, specific way for a profession as broad as freelance writing. McGrady suggested, “Work should be measured in time…not arbitrary number of pieces, to come closer to the spirit of the law.”

Disabled and/or neurodiverse writers are particularly at risk with AB 5. Pop culture essayist Kristen Lopez stated that as a person with a disability, “The job market is already very limited because there’s still that stigma of liability”; employers don’t want to take on the higher risk of a disabled employee getting hurt on the job. For people who collect disability, freelancing can be an economic life jacket: “I can still make a little bit of an income and stay on [the government’s] good side… if I were to stop writing, I would be forced to live off of… about $800 a month, which in Los Angeles does not go far.” She also depends on the government-provided healthcare that comes along with disability benefits, so it’s essential that she follows the rules.

Like many writers who cover pop culture, Lopez writes several pieces a day for her anchor clients: “I would hit that 35 limit cap in about two months. What do I do the other 10 months out of the year to pay my bills?” A few weeks ago she was let go from an anchor client based in New York, who told her they were transitioning to in-house writers only. However, because AB 5 also applies to companies based outside of California (it’s dependent on the location of the freelancer, not the company), she suspects it may have contributed to this decision.

While not disabled, August McLaughlin is neurodiverse, and freelancing has allowed her to thrive. She stated, “Sticking to a schedule, sitting still and focusing on-command at times when my executive function isn’t sharp.. .are just some of the factors that make it extremely difficult for me to work for someone else as an employee.” The 35-submission limit would be devastating for her livelihood, but if she were forced to get a conventional job, “my ADHD is likely to feel debilitating.”

Finally, there’s the issue of age discrimination in traditional workplaces and the ways freelancing has allowed older writers to make a living. Michele Anna Jordan has been writing weekly food columns for the Santa Rosa Press Democrat since 1997. She stated, “I just turned 70…I have a large dedicated readership, developed over a period of 22 years and literally thousands of columns. The loss of this client would put me at risk of homelessness and, of course, deep despair. Who would hire a 70-year-old woman with a set of nontraditional skills? No one.”

Despite the fear and apprehension surrounding AB 5, many freelance writers understand the good intentions of the law, and shouldn’t be assumed to hold anti-labor views or discussed as “scabs” who enable the devaluation of journalists’ labor. In fact, while their reasons for freelancing are wide-ranging, some freelance writers would love to have the stability of working on staff and/or of being able to join a union. Their critique of AB 5 is that rather than addressing the root causes of exploitation in the media industry, this bill further disempowers already precarious freelance writers.

McGrady emphasized, “I fully support the idea that workers should be treated fairly. And I am all for unions,” but “the result for freelance writers is probably the opposite of what they set out to do.” Similarly, Bernard stressed the lack of nuance in AB 5: “Uber and Lyft workers need this law. Full-time staff fired from rich media companies and re-hired as perma-lancers need this law. But writers who contribute a few hours of work a week … for an independent online magazine? I don’t see the problem there.”

Through platforms like the Facebook group Brown founded and Twitter, freelance writers are banding together to try and fight the limits imposed on them by AB 5. Some have even met with Gonzalez in recent weeks to try and explain their livelihood, specifically the fact that many freelance writers are not exploited. It seems unlikely that freelance writers will be exempted from the bill, although the list of exempted professions appears to be quite arbitrary. For example, why are grant writers and marketing professionals exempt, while freelance writers — many of whom do content marketing writing as part of their business — are subject to a 35-submission limit? These details highlight how inconsistent AB 5 is as written.

But what is certain is that AB 5 is already beginning to wreak havoc on the California freelance writing community. As Lopez stated, “It threatens to decimate a[n]…industry that is predominantly filled with my minority voices.” Indeed, outcry is starting to grow on Twitter, with some even saying AB 5 raises First Amendment concerns, a point also made by Riese Bernard, who called it “a danger to free speech and freedom of the press” for independent media.

Many realize that, due to the longstanding hierarchy between staff writers and freelance writers — who often face economic precarity and mistreatment — AB 5 will only further harm disempowered writers.

This article was originally published in DAME magazine.

Rebecca Bodenheimer is a freelance writer and cultural critic whose work has been published by CNN Opinion, Vice, The Lily, Mic, Billboard, The Rumpus, and other outlets. Find her on Twitter @rmbodenheimer.