Freelance writers and photographers sue over gig-economy protections that limit the number of stories they can produce

When California legislators passed a landmark workers’ rights bill in September, many hailed the legislation as a historic victory for workers in the gig economy.  But with the law poised to take effect, some journalists are sounding the alarm bells. 

On Tuesday, two groups representing freelance writers and photographers filed a legal challenge to the law ahead of its enactment on 1 January, saying it would unconstitutionally affect free speech by limiting how many stories they can produce. 

California assembly bill 5, or AB5, changes the way contract workers are classified.  It will implement a three-part standard for determining whether workers are properly classified as independent contractors, requiring that 1 they are free from the company’s control, 2 they are doing work that isn’t central to the company’s business and 3 they have an independent business in that industry. 

When it comes to writers and photographers, AB5 restricts contractors from producing more than 35 written content “submissions” a year for a single publication before they would be considered employees.  In the lawsuit, the American Society of Journalists and Authors and the National Press Photographers Association allege the livelihood of many freelance journalists would be threatened by the bill. 

Though the sweeping law affects all industries in California, journalists will be disproportionately affected, said Alisha Grauso, a journalist and member of the California Freelance Writers United.  As the journalism industry has crumbled in the past decade, more publications have shifted to a model relying heavily on contract work while more writers have started freelancing. 

“The nature of our industry is so volatile that even if you are on staff in the media industry, there is no security,” Grauso said. “ We have to be prepared to freelance at any time.” 

It is common for freelancers to secure what is called “an anchor job”, a steady gig that provides a regular paycheck, such as a weekly column or work shift, she said.  Limiting writers to 35 submissions a year would undermine that model. 

“On the surface, this bill keeps us from doing our job and takes money out of our pockets,” Grauso said. “ No industry has been impacted as much as freelance writers because of the nature of our work”. 

Advocates for AB5 argue news outlets exploit freelancers by hiring them to do full-time work without paying benefits.  Many news outlets, particularly small ones, say they do not have the resources to employ writers full-time. 

The effects are already playing out: the digital sports media company SB Nation, owned by Vox Media, announced on Tuesday it would end its use of more than 200 California freelancers, switching instead to using a much smaller number of new employees.  Other publications are laying off longtime freelance contributors who are based in California. 

California landmark workers' rights bill sends waves through gig economy firms Read more

The law gives newspaper companies a one-year delay to figure out how to apply the law to newspaper carriers, who work as independent contractors.  The California Newspaper Publishers Association, which sought the extension, did not immediately comment on the new lawsuit. 

The bill’s author, the Democratic assemblywoman Lorena Gonzalez of San Diego, did not immediately comment on the lawsuit, nor did the state attorney general, Xavier Becerra, who is named in the lawsuit.  She has said on Twitter that she was open to tweaking AB5 after journalists criticized it. 

“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 wrote. “ But this won’t get resolved just on Twitter.  And it can’t happen before January.” 

The backlash against AB5 shows the bill needs more thought, said Andrew Ambrosino, CEO of the gig economy benefits startup Catch. 

“The California legislation passed this bill without understanding what they were doing,” he said. “ I don’t think it’s tenable at all and I don’t think it is going to solve the problem they were trying to solve.” 

Other industries have also spoken out against the bill: the California Trucking Association last month filed the first challenge to the law, arguing it would harm independent truckers.  Members of the music industry aired their grievances in an open letter by representatives of the Music Artists’ Coalition, the Recording Industry Association of America, and the American Association of Independent Music. 

Uber, Lyft and DoorDash have said they will spend $90m on a 2020 ballot measure opposing the law if they can’t negotiate other rules for their drivers.  Uber also said it would keep treating its drivers as independent contractors and defend that decision in court if needed. 

“This ballot proposition will likely open the door to more ballot propositions,” the California-based employment law attorney Eve Wagner said of the efforts from Uber, Lyft, and Doordash. “ This story is going to be going for quite some time.”