California’s AB-5, which I wrote about earlier, is now law. This is bad news for freelance writers in the state. It’s already cutting into writers’ earning ability. People are already losing work. Some businesses have stopped hiring California writers.
The bill’s supporters in the legislature pretend it’s for the freelancers’ own good. They shouldn’t be working in such low-paying jobs! Certainly some writers work for sadly low rates. It’s the best choice for some people, especially ones with limited mobility or other handicaps. Some of them have few alternatives and need the money to break even. Others love writing and would like to make some money at it, even if it’s not a lot.
But influential unions can’t organize self-employed people. It’s hard to ensure that they pay all their taxes. Uber and Lyft drivers compete with taxis. Those are the real reasons for restricting self-employment.
As a former software developer who has spent much of his career on contract work, I have long familiarity with this type of law. Decades ago, a federal law put obstacles in the way of contracting with clients, requiring a long list of conditions to be satisfied. Some clients stopped hiring individual contractors to be on the safe side. The winners were service companies who hired out their employees.
The three-part test
To preserve your freelancer status, you have to pass a three-part test. One tricky part is that the freelancer should be doing work “outside the usual course of the hiring entity’s business.” A large proportion of publications, other than news media, rely on freelancers for their material. They’ve been stopped from using California writers. Agencies which hire freelancers to produce content for customers are on questionable ground. Lawyers may have to hash their status out.
You’re also supposed to be “customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.” If you make a full-time business of writing, you’re good on this point. If you just do it occasionally, you may fall within the safe harbor limits. There’s a lot of uncertainty that lawyers will have to address.
There’s a safe harbor provision for writers, with a limitation of 35 submissions per client. This number is purely arbitrary, but it seems designed to rule out weekly assignments. Some people are confused on this point. If you can pass the three-part test, you can submit all the articles you want. The 35-article limit is for those who don’t pass the test. But note that the limit is 35 submissions, not sales. If you submit lots of articles in the hope of getting one published, you could go out of bounds.
Bear in mind that these are just my interpretations. I’m a writer, Jim, not a lawyer.
Writers everywhere will lose
Writers in other states may think they’ll win. With competition from California heavily restricted, they may think they’ll get more assignments. But it’s likely that writers in general will lose. Agencies will find it difficult to identify which writers are affected, especially in cases of ambiguous residence. They’ll lose a noticeable part of their writer base. Writers may have to jump through hoops to establish they’re allowed to contract out their services.
Publications may close or move to in-house staff. In many cases, the latter isn’t a viable option. The smaller publications will be hit the hardest.
Other states may get in on the act. New Jersey has a similar bill. The U.S. Chamber of Commerce calls it “even more problematic” than California’s legislation.
These bills don’t target writers as such. We’re just collateral damage, but that’s poor consolation.