Gig Economy Law Author Proposes Legislation Easing Impact on Freelancers

The California state Capitol building - Getty -H 2016
David Paul Morris/Getty Images

Amendments to AB 1850 end the controversial 35-submission cap for freelance journalists and requires that companies allow independent contractors to work for other businesses.

California Assemblywoman Lorena Gonzalez is responding to freelance journalists' repeated criticisms of her gig economy law with new legislation.

The author of AB 5, legislation that aims to crack down on companies that misclassify part-time workers as independent contractors, revealed on Thursday that she is working to nix the prior law's 35-"submission" cap for freelance writers, editors and photographers in a bill working its way through the California legislature this year, AB 1850. Her latest amendments to AB 1850 make clear that a contractor does not and cannot replace an employee role.

The new amendment to AB 1850 also requires that a freelancer's contract states rate of pay, the time by which the contractor will receive payment and what kind of intellectual property rights the contractor has to the work. Freelance writers have often complained that publications pay them for their work late; typically, a freelance writer does not have rights to their stories published at a major outlet.

The new AB 1850 amendments also require that companies hiring these contractors must allow them to work for more than one business, and that the majority of the work the contractor performs cannot take place at the hiring company's office. Gonzalez's office adds that journalists and hiring entities must satisfy the following AB 5 requirements to keep their independent contractor status: that the contractor works through a "sole proprietorship" or other business; that the contractor has a separate location from a hiring entity's office in which to do their work; that the contractor has a business license for work performed after July 1, 2020; that the contractor is able to set or negotiate their own rates; and that the contractor is able to set their own hours outside of "reasonable" business hours and project completion dates.

If passed, the legislation will go into effect January 1, 2021.

“Having heard additional feedback from a variety of freelance writers, photographers and journalists, we are making changes to Assembly Bill 5 that accommodate their needs and still provide protections from misclassification,” Gonzalez said in a statement about these amendments.

AB 5's exemption for freelance journalists has come under fire in the last few months from journalists and organizations that represent them, who say that the exemption's big requirement — that journalists who work for companies that mainly report the news be capped at "35 submissions" per "putative employer" to remain independent contractors — is potentially career-ending. Though the law aims to pressure companies to hire independent contractors who do significant work for them as part-time or full-time employees, journalists say that amid today's media environment, it's more likely their pitches will be ignored or they will be cut from freelance rosters.

That prediction seemed to be coming to fruition by mid-December, when Vox Media announced it was cutting ties with California freelance writers; Business Insider had also, by that point, capped freelance writers in the state to 35 stories per year, while sources provided THR with blogging, transcribing and SEO writing job notices that stated California freelancers would not be considered.

Freelance journalists fought back by forming the group California Freelance Writers Unite to fight for an amendment to AB 5; the American Society of Journalists and Authors and National Press Photographers Association also sued the state of California in December. The group had a setback in early January, when a federal judge did not grant journalists a temporary exemption from AB 5, arguing that the group had waited too long to file suit.

In a response to the proposed legislation on Thursday, Maressa Brown, founder and co-leader of California Freelance Writers United, said, "The proposed amendment language regarding freelance writers and journalists, released today by Assemblywoman Gonzalez, is promising. We’re encouraged by the assemblywoman’s willingness to respond to our concerns about the devastation AB5 has wreaked on writers and journalists' livelihoods. We're eager to work with the Assemblywoman to perfect the new language, as well as clarify the B2B exemption. Given that journalism and writing are currently and increasingly produced in a multimedia fashion, the ban on freelance videography must be removed, and we look forward to clarification regarding freelance audio recording. We also stand with our freelance broadcast colleagues and other industries negatively impacted by AB5 who are seeking relief. We look forward to discussing these areas for improvement and exploring ways to enact changes as urgently as possible."

Gonzalez first announced the new language regarding freelance journalists in a tweet thread on Feb. 6. "Based on dozens of meetings with freelance journalists & photographers, we have submitted language to legislative counsel that we hope to have available next week to put into AB1850 which will cut out the 35 submission cap & instead more clearly define freelancer journalism," she wrote. "We will move up the B2B language in code to ensure folks understand it is the first exemption and specify that such a exemption is allowable for freelance writers."