California Freelance Journalists Pitch Amendment to Gig Economy Law (Exclusive)

The California state Capitol building - Getty -H 2016
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The group is asking for an end to a cap of 35 submissions per employer per year, and a new system for classifying employees and independent contractors.

For the last few months, a vocal group of California freelance journalists have railed against the state's upcoming gig-economy law, which they say puts their livelihoods critically at risk. Now, those journalists are proposing an amendment to the law to be implemented in the upcoming legislative session.

California Freelance Writers United (CAFWU), the group of over 1,000 journalists that organized first on Facebook and then in person to resist the freelance journalist exemption in Assembly Bill 5, unveiled a proposed amendment to The Hollywood Reporter on Sunday. The pitch calls for California legislators to remove the 35-submission cap per employer that AB-5 requires for a journalist to remain an independent contractor with that employer and instead to classify independent contractor journalists based on where they work and what equipment they use.

Senators and State Assemblymembers who have previously asked for a proposed amendment will receive the pitch, and CAFWU will also bring it to upcoming meetings. In the last few months, CAWFU leaders and members have discussed AB-5, which aims to prevent the misclassification of workers as independent contractors, with staff members at California Gov. Gavin Newsom's office, Democratic State Assemblymember Adrin Nazarian, Democratic State Assemblymember Richard Bloom, Democratic Assemblymember Laura Friedman and Democratic Assemblymember Wendy Carrillo.

Assemblymember Lorena Gonzalez, AB-5's author, said in a statement about the proposed amendment, "At first glance, this language appears to contradict California’s current and long-standing labor protections that exist for remote workers and seems to serve as a negative precedent that could increase employee misclassification. However, I’ve had meetings with dozens and dozens of workers in this industry and it’s clear there are a variety of perspectives out there. I look forward to working with anyone who wants to make progress for workers in this industry when we are back in session in January.”

"CAFWU’s proposals aim to protect independent contractors’ rights to self-determination and will prevent the otherwise inevitable catastrophic loss of income they will face as clients blacklist California writers," the group writes in a release set to publish Monday. "These proposals will also safeguard the interests of newly developed newsroom unions and writers experiencing exploitation at the hands of unethical employers."

In asking to remove the 35-submission cap for independent contractors, CAFWU argues that the limit creates "unconstitutional" distinctions between different kinds of content creators. Writers, editors, still photographers and visual journalists will all be required to abide by the submission cap come Jan. 1; graphic designers, grant writers and marketing writers have full exemptions under AB-5. CAFWU asks that all professions protected by the First and Fourteenth Amendments "be treated the same by the law."

AB-5, signed into law in September, offers a so-called ABC Test to determine whether a worker is an independent contractor or employee. The sticking point for journalists is the "B" prong, which requires that a freelancer "performs work that is outside the usual course of the hiring entity's business." For journalists working for publications, their employers' businesses are most often built on submissions like theirs.

In the proposed amendment the CAFWU also offers a new classification method for the profession: The difference between independent contractors and employees, the group writes, should be that independent contractors work outside of employers' primary places of business and use their own equipment, whereas an employee would work in an office with company equipment. The CAFWU asks that independent contractors still be allowed to take meetings and use studio space in a company office.

As for requiring office workers to be employees, "This will protect newsroom staffs, as newsrooms require on-site office work. They will not be able to misclassify their workers as freelancers, because they cannot let them work off-site or outsource from other states," the group writes.

"After several productive meetings with legislators, many asked us to suggest a proposal for an amendment the Assembly could make to the law in the 2020 session," CAFWU co-leader Fred Topel said in a statement. "It is important to CAFWU that legislators see counting submissions is an inaccurate way of classifying writers, editors, photographers or casters as employees or contractors. The spate of companies ending their relationships with Californians in December alone bears this out. We feel a writer, editor, photographer or caster’s place of business is a more accurate criteria for whether or not someone is being misclassified or exploited.”

The proposed amendment comes less than a week after Vox Media severed its current business relationship with California freelancers, and days after The American Society of Journalists and Authors and the National Press Photographers Association sued the state of California on behalf of freelance journalists. The suit claims that the law is unconstitutional and will irreparably harm the lives of these workers.

Even with this year-ending flurry of activity on behalf of these journalists, new legislation will take another year, if passed, to go into effect. The next legislative session will begin Jan. 6.