A war of words spilled into federal court today. Two groups representing freelance journalists filed suit against the State of California over its new labor law, Assembly Bill 5, which sets limits on the definition of independent contractors.
The law, which goes into effect on January 1, aims to reduce the number of workers misclassified as independent contractors as opposed to employees. But according to the lawsuit filed on behalf of the American Society of Journalists and Authors (ASJA) and the National Press Photographers Association (NPPA), the provisions unconstitutionally single out freelance journalists by limiting the amount of work they can produce for any single publisher.
“The problem with AB 5 is that it creates this one-size-fits-all rule that doesn’t really fit anyone very well,” says Jim Manley, an attorney for the Pacific Legal Foundation, which represents ASJA and NPPA in the suit.
Under AB 5, freelance journalism falls under the category of professional services, a class of work that includes fine artists, grant writers, and marketing representatives. The law places unique restrictions on journalists, however, that don’t apply to others in the class.
“Writers and photographers have this 35 submission per year cap,” says Randy Dotinga, a San Diego freelancer of 20 years and ASJA board member. “Other fields like marketing and graphic design have no cap.” Additionally, freelance photojournalists are barred from filming any video.
So while Dotinga could write 200 press releases a year as a freelance marketer, he would be be limited to writing only 35 articles a year about those press releases, according to the suit. By discriminating according to the type of content allowed under AB 5, the law deprives freelance journalists “of their rights to free speech, free press, and equal protection, in violation of the First and Fourteenth Amendments to the United States Constitution,” the journalists contend.
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Shot / Chaser pic.twitter.com/quAPTaG3w7
— Eric Boehm (@EricBoehm87) December 17, 2019
The lawsuit comes less than a day after New York-based Vox Media ended contracts with hundreds of freelancers in California who write for the sports blog network SB Nation. Vox Media now plans on hiring 20 full-time and part-time staffers. SB Nation has been criticized in the past for relying on unpaid bloggers and underpaying their writers.
San Diego Representative Lorena Gonzalez, the author of AB 5, shot back at the lawsuit by pointing to the Pacific Legal Foundation’s history of libertarian-leaning legal advocacy.
“First, it was the Endangered Species Act, then women on corporate boards, and now the Pacific Legal Foundation is attacking California’s landmark workplace rights law,” she said in a statement. “That should come as no surprise to anyone.”
The entirety of labor law is broken. Until we can upend & strengthen labor laws nationally, we have to battle to fix things state by state. Big structural reform is tough. But that is the only way we will actually upend income inequality. Stop accepting exploitation. Organize.
— Lorena (@LorenaSGonzalez) December 17, 2019
Advocates for AB 5 have argued that California’s previous laws were inadequate in addressing the rise of the gig-economy and rampant misclassification of employees.
Over the course of its drafting, AB 5 faced fierce lobbying on behalf of a wide variety of industries. Since its passage, three app-based technology companies—Uber, Lyft, and DoorDash—have committed a whopping $90 million to place a competing initiative on the 2020 ballot that would undo AB 5.
When he signed the bill this September, Governor Gavin Newsom described it as “landmark legislation for workers and our economy.”
“It will help reduce worker misclassification—workers being wrongly classified as ‘independent contractors,’ rather than employees, which erodes basic worker protections like the minimum wage, paid sick days and health insurance benefits,” he wrote.
According to Manly, the lawsuit on behalf of freelance journalists does not seek to undo the law—only the limitations on freelance journalists.
“Really all we’re asking for is to eliminate the 35 item limit on journalists and eliminate the video limit,” he says.
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