UPDATE 2/21/2020: I’ll be speaking at the #RepealAB5 rally in LA this Friday January 24. Are you in the area? Stop by!
I’ve been a freelance writer my entire life. It was my career choice. It’s what I love to do. Even when I’ve held full-time salaried jobs I have always freelanced at least a little on the side for the sheer love of it.
Being a freelance writer has enabled me to work from home, set my own hours, and maintain complete control over my working environment. I don’t have to work for anyone I don’t want to work for. I don’t have to do work I don’t want to do.
Freelance writing is a dream job. It is MY dream job.
So imagine my horror when I discover that this STUPID AB5 (Assembly Bill 5 aka “the anti-gig law”) has, in effect, made certain types of freelance writing work illegal.
Illegal? To do freelance work, of your choice, in the volume you choose?
And yes, I have already been hurt. I had a promising new client. Did a little work for them in 2019. Was discussing some new work in 2020.
Not any more.
That opportunity is now GONE.
Why? Because I live in California.
My skills, my (extensive) experience, my professionalism, my talent. It means zip in this situation.
Because I live in California, the work I would have gotten will go to someone else.
Yes, I am pissed.
And I’m going to pitch in to fight this thing. #RepealAB5!!!!!
In the meantime, I’m going to use this post to compile background to help people understand AB5, the history of AB5, and how it is impacting people like me. Creatives, sole proprietors, work-at-home women — we didn’t bother anyone, we were NOT being exploited — WE DIDN’T DESERVE THIS.
Let’s start with …
LA Times in September: Groups with “political juice” got AB5 exemptions
California’s employment law was rewritten. Many independent contractors aren’t thrilled. This is a September 23, 2019 column by George Skelton that appeared in the LA Times and — already! — pointed out how awful AB5 is. “The gig law’s advocates” Skelton wrote, think independent contractors are all being “exploited” by “greedy, heartless corporations.” (No. We are NOT.)
The article captures a bit of history of the bill’s creation and signing. It was written by (former labor organizer) Assemblywoman Lorena Gonzalez (D-San Diego), and “seemed to be aimed primarily at Uber and Lyft.” There’s also this tidbit …
Newsom signed the bill last week without inviting in reporters, avoiding pesky questions about why some workers gained exemptions and others did not.
… to which Skelton adds:
“A problem with AB 5 is some people got exemptions because they had political juice and other people didn’t,” says labor lawyer Brad Shafer.
Yeah, that’s just what we want from our legislators. Complicated laws that ensnare some of us, while exempting groups that have political influence :(
Skelton interviews several people who anticipated being affects, including a physical therapist, a nurse anesthesiologist, and a clinical counselor / dance movement therapist. Great. Let’s drive those people out of California /sarc off
CBS in September: AB5 is a standard for the rest of the country to follow
In a September 11, 2019 piece that essentially lauds the article for fighting all those bad exploitative corporations, California approves bill that will turn gig workers into employees, CBS/AP quote the California Labor Union as stating the law will set “the standard for the rest of the country to follow.”
New York writers, brace yourselves.
The article also notes that “Uber and other app-based businesses that rely on gig workers” were planning to “spend $90 million on a ballot initiative that would exempt them from AB5.”
Anybody have $90m on hand to exempt freelance writers? Hello? Hello?
The Fallout Begins: Vox Media axes its California-based freelance writers
You probably heard about this when it happened: Vox Media to cut hundreds of freelance jobs ahead of changes in California gig economy laws. The link is to a CNBC article by Ari Levi and Alex Sherman, and is one of many pieces on the Vox fallout that hit in early December, 2019.
The issue that cost all those freelancers their gigs was the cap on how many jobs per year you can do as an Independent Contractor, under AB5:
As it pertains to Vox, the law forbids nonemployees from submitting more than 35 pieces per year.
As many, many people have pointed out, 35 pieces a year is NOTHING for a freelance writer. If you get a gig writing blog posts, you could easily deliver 35 per month!
The CNBC piece also speculates on how many people would be hurt by AB5:
The bill has the potential to change the employment status of more than 1 million workers in California.
I bet that number is low … if anyone sees any updated figures, please drop me an email or a link in the comments — thank you!
Next Up: Lawsuits
After the turn of the year, the reality of AB5 started to hit home. People are now organizing to fight back. This article by Billy Binion in Reason magazine, California Freelancers Sue To Stop Law That’s Destroying Their Jobs. Pol Says Those ‘Were Never Good Jobs’ Anyway., describes one lawsuit, filed on December 17, 2019 by the Pacific Legal Foundation on behalf of the American Society of Journalists and Authors and the National Press Photographers Association.
The article quotes Alisha Grauso, an entertainment journalist and the co-leader of California Freelance Writers United as noting that the way companies will “comply” with AB5 is to “simply blacklist California writers and work with writers in other states.” (Yep. Why shouldn’t they? Who wants to invite trouble from California regulators when you can easily avoid it?) Grauso also notes that the bill is particularly harmful to women.
“The reality is it still falls primarily on women to be the caretakers and caregivers of their families, and freelancing allows women to be stay-at-home mothers or to care for an aging parent,” Grauso notes. “Being made employees kills their flexibility and ability to be home when needed. I cannot stress enough how anti-women this bill is.”
This article is the first I saw that starts documenting the (horrible) responses of Lorena Gonzalez to AB5 backlash; e.g. she said the Vox jobs “were never good jobs.”
Uh, yes they were, Lorena. As was the “gig” I lost thanks to your stupid law.
And there’s also this charming gem:
“[Freelancers] shouldn’t fucking have to [work 2-3 jobs],” the assemblywoman, addressing a detractor, said in a Twitter exchange last week. “And until you or anyone else that wants to bitch about AB5 puts out cognizant policy proposals to curb this chaos, you can keep your criticism anonymous.”
What a way to treat your constituents …
The article then goes on to quote freelance writers who saw substantial damage to their income streams thanks to AB5, including one writer who lost a client that paid her $20K with in 2019. Unbelievable.
Stories from Devastated Writers Start to Emerge
In addition to organized backlash and quotes in articles like the Reason piece, we’re now seeing blog posts like this from Jenna Busch: I Built A Stellar Career As One Of The Only Women In Geek News, But California’s New Law Could Destroy It All.
Click through and read it all. Busch does a great job of explaining what it means to be a freelance writer, how she fought to establish her freelance career (in a male-dominated industry niche) and how AB5 is causing her to lose jobs “left and right.”
Busch is also active in California Freelance Writers United so has additional insight into Lorena Gonzalez’ attitude toward freelance writers who are being hurt by this bill:
Clearly, Gonzalez doesn’t understand our business and didn’t do enough research before including us and others — like musicians, court reporters, translators and independent truckers — this bill.
During meetings with her, writers were told that the soonest anything in the law can be changed — if we can convince her to do so — is September 2020. That means ruin for many of us.
Here’s a twitter thread from another destroyed freelance writer, Beth Demmon, that starts:
Fuck #AB5. I’m so upset. I’m sitting here crying bc everything I’ve worked for, the career I’ve created and based my entire life on, is crumbling around me and there’s literally nothing I can do about it.
:(
UPDATE: Here’s a piece by Lauren Sakiyama, The End of Freelance: How a California Bill Killed My Writing Dream. Sakiyama just landed a freelance gig in December:
When I found a job as a freelance food writer my dreams came true. That was, until, a few arrogant elected officials decided they knew best.
UPDATE 1/20/20: Here’s a Twitter thread from freelance writer Stephen Beale. How it ends:
My unemployment benefits are exhausted. I’m surviving with some freelance income and by selling personal items on eBay. I’m desperate for work. If nothing else, I might end up with a minimum wage job at Home Depot or another retailer, if they’ll have me. 8/9
These are the fruits of AB5, a law written with some good intention but appalling ignorance of the impact it would have on so many professions.
Thanks, Lorena Gonzelez.
Speaking of whom … guess what her response is to people like Beth?
Lorena Gonzalez “Simply Doesn’t Believe” You If You Claim You’ve Been Hurt by AB5
Hard to believe, isn’t it? But here you go — from Mike Masnick in Techdirt: California Assemblywoman Lorena Gonzalez Says She Simply Doesn’t Believe All Of Those Who Have Been Harmed By Her AB5 Bill. Masnick writes that although many people are talking about how the law is hurting them, “time and time again Gonzalez dismisses their concerns or insists they can just ‘form a business’ and be exempt.”
Form a business?
Well first off, Gonzalez, we freelance writers already ARE “a business.” We have to be a business to freelance, file taxes, and fufill other requirements ALREADY ON THE BOOKS in California.
What Gonzalez (probably?) means is “become an LLC instead of a sole proprietor.” But guess what?
Becoming an LLC costs money. Per my CPA: start with an $800 franchise fee. Then file Articles of Organization with the California Secretary of State ($70 filing fee). Then file Articles of Organization and Statement of Information ($20 fee) You must also “hire a registered agent in California” which costs $50-500 PER YEAR.
Your cost of doing business goes up. You’re spending (even more!) time filling out and filing paperwork (and probably providing copies to your clients) than you could have spent writing.
And worse yet …
Becoming an LLC May Not “Fix” Anything for Freelance Writers???
Yeah, file this under “holy crap.” Per attorney Nina Yblok, who is licensed to practice law in California, has argued independent contractor cases to the California Employment Development Department, and has done “innumerable” independent contractor audits get this little twist o’ the plot (emphasis mine):
AB5 covers corporations, LLCs etc. and people. This is the ONE really big change in the law, since I’ve always believed that in many cases Dynamex and Borello will result in the same determination. But in the past legally formed California corporations and LLCs, even if owned by only one person, were automatically determined to be ICs. Now they are not.
UPDATE 1/22/2020. In a piece in Capital Insider, Oh, What a Relief It Isn’t – AB 5 and the B2B Exemption, Laura Curtis, takes a measured look at AB5’s so-called B2B exemption. [Emphasis mine.]
The new law governing independent contracting, AB 5, includes what can be described as a business-to-business (B2B) exemption. But a close examination of the actual language shows that the B2B exemption is virtually inoperable.
Yep.
Curtis’ extremely thorough piece carefully documents how the bill’s vague and contradictory language makes the B2B exemption a joke. And, what’s more:
[E]ven if a service provider can establish that it meets all of the factors, misclassification liability on the hiring entity is so great that no one wants to take the risk…
THAT, my friends, is why California freelancers are being blacklisted.
First, vague and contradictory lawyer-ese makes it impossible know how to comply.
Then your clients get spooked.
Is anyone with a whit of common sense suprised by this?
UPDATE 1/18/20. OMG: AB5, the Federal Version?
So you thought you were immune, if you lived far far away from beautiful California?
Good luck with that. As predicted by media outlets like CBS (see above), politicians around the country are looking at AB5 as a model for state legislation.
Worse yet, according to Redstate (yes, a right-wing website), AB5 language has been added to a federal bill that is now out of committee.
H.R.2474 – benignly titled ‘The PRO Act’ was originally drafted in May of 2019 as a union-strengthening bill. In its infancy it had nothing to do with independent contractors … But this is government and with government there is never enough. Somewhere between September of 2019 and December of 2019 someone added an amendment to the behemoth employer-rights killer that was a simple copy and paste of California’s AB5.
My stomach has literally gone nauseous about this. Please, if you care about peoples’ freedom to work for themselves, call your Congressional representative and tell him/her to fight this bill!
UPDATE 1/20/20: Daily Kos (!) has come out with an editorial, Democrats across the country seek to make California’s mistake, destroying careers of freelancers that calls AB5 an “unmitigated disaster.”
People who don’t need protecting—professional freelancers, are seeing their livelihoods upended and destroyed.
Kos urges lawmakers in other states to hold off copying this mess.
It would behoove Democrats in other states to step back and let California figure out a way out of this mess, and let the courts weigh in, before it decides to join in, destroying the livelihoods of creative class people that, it so happens, also happen to be a strong Democratic constituency.
UPDATE 1/20/20. Coming Soon To Your State, Too?
Are you a freelance writer living in New Jersey? Brace yourselves. You may soon be in the same boat as us Californians, per this piece, New Jersey bills to limit freelance contractors reflect un-American trend, by Jen Singer.
New Jersey lawmakers, Singer explains, tried last year to pass an AB5-like bill. And like AB5,
it was so overreaching in its scope that it targeted far more than misclassified employees. It would destroy the ability for everyone from attorneys to data analysts to work, because it made no meaningful distinction between an exploited worker and a career professional who chooses to work for herself.
The citizens of the state fought the bill last year and “managed to shut it down before the final vote.”
But guess what?
Then, on the first day of the 219th Legislative Session last week, the Senate introduced S863: new session, same old bill.
This is crazy. Seriously. What is wrong with our politicians that they think this is a good idea???
UPDATE 1/20/2020: Andrew Cuomo sounds like a guy gearing up to bring AB5 to New York State. From Dana Rubinstein in Politico:
“A driver is not an independent contractor simply because she drives her own car on the job,” Cuomo said, echoing the years-old rhetoric of worker advocates. “A newspaper carrier is not an independent contractor because they ride their own bicycle. A domestic worker is not an independent contractor because she brings her own broom and mop to the job. It is exploitive, abusive, it’s a scam, it’s a fraud, it must stop and it has to stop here and now.”
Ugh :(
Additional AB5 Resources & Reading
Statement on AB5 from the Author’s Guild which reads in part:
To be clear, the Authors Guild fully supports employment protections for freelance journalists and authors, and will be lobbying for collective bargaining rights in 2020. Like Uber drivers, writers have no benefits and are often paid less than minimum wage. But forcing writers to work as employees, especially on a state-by-state basis, is not the way to go about it.
The Author’s Guild also warns that AB5 could affect some book-writing agreements:
There are, however, some book-writing agreements that could be considered service agreements and arguably would fall under AB-5, such as work-made-for-hire agreements and contracts where the author has ongoing obligations and the publisher has greater editing ability or control over the content.
If you’re on Twitter, follow the hashtag #RepealAB5. This law has to go, let’s work together to make that happen!
Join California Freelance Writers United. CFWU was formed to challenge AB5. I’ve joined!
UPDATE 1/18/20: The AB5 articles archive is an exhaustive compilation of all things AB5. Covers all industries, not just freelance writing!
Please feel free to add additional resources or links to AB5 related articles in the comments. I’ll be updating this post as the AB5 story unfolds.
