Will Early-Career POC Journalists Survive AB-5?

The California labor law was intended to help gig workers, but the one-size-fits-all solution is hurting journalists, especially journalists of color.

By Quinci LeGardye

I first heard about AB-5, California’s new independent contractor law, in November. I was concerned about the limits the law places on freelance writers, but publications were still figuring out what it meant, so I wasn’t sure what to expect. I really got worried once I received an email from a publication in late December. I’d just finished an internship with them and had accepted an offer to continue filing small weekly sections as a contributing writer. I’d be doing the same work as the internship — a few short pieces plus an article — for $300 a week. With that money, plus good relationships with editors at other publications, I was entering my second year freelancing with a good financial baseline.

Then the publication informed me that because of AB-5, I would have to establish a business for my freelance writing work and contract with the publication to continue writing past 35 individual articles. I immediately went on a research binge: I looked up what the law meant, what the B2B exemption mentioned by the publication entailed, what an LLC was, whether I really needed to form one, what a sole proprietorship was, how to spell the world “proprietorship.” Three hours later, I closed my computer with the titles of subsections swimming in my head. No one on the internet had a clear answer.

After a month of research, I’m still concerned, but I believe it’s too early to become nihilistic about AB-5. The law is facing legal challenges across so many industries that it seems likely that it will be revised. But as a black woman just getting started with freelance writing, contemplating the odds of staying in an industry that already has barriers to entry, I wonder how hard it will be for me and other new journalists to keep writing under AB-5.

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AB-5 was signed into law on September 18, 2019 and went into effect in California on January 1 this year. It applies an “ABC test” to determine which workers can be identified as independent contractors and which are employees: to pass the test, an employer has to prove that a contractor is free from the company’s direction and control; does work outside of the company’s usual business; and regularly performs that work outside of what they do for the company. The law was meant to stop the misclassification of workers for startups like Uber and DoorDash, who are considered independent contractors despite the fact that many function like employees. Though the drafting of the law was prompted by gig workers wanting to organize, it applies to independent contractors in other industries as well.

AB-5 exempts certain jobs from the ABC test. Journalists have a partial exemption, which stipulates that writers can be independent contractors and write up to 35 submissions per client per year. After that, writers must be considered employees, with all benefits and protections that entails. If publications are found guilty of misclassifying writers, they face civil penalties of up to $25,000 per violation, or prosecution by the state Attorney General or their city attorney. The law covers all independent contractors in California and all outlets based in the state.

The law’s language is confusing: whether a “submission” constitutes a series of pieces on one subject or just one piece is unclear. There’s a B2B exemption, which some interpret to mean that writers can stay independent contractors if they bill as a small business contracting to a publisher. There are mixed messages about whether the writer has to have an LLC, which costs $800 a year in fees, or just a sole proprietorship with a business name and a federal employer identification number. California Assemblywoman Lorena Gonzalez, the bill’s author, has recently said that a sole proprietorship would be enough, but many publications have said that they want writers to have an LLC, according to members of California Freelance Writers United and Faces of AB5. Some publications don’t want to deal with the hassle of working with AB-5’s requirements at all. In December, in anticipation of the law going into effect, Vox eliminated 200 California-based freelance positions at its sports vertical, SB Nation, to be replaced by just 20 full-time or part-time positions.

The American Society of Journalists and Authors and the National Press Photographers Association have already filed a lawsuit to exempt freelance journalists from AB-5 completely, on the basis that the law violates constitutional rights to free speech and equal protections by singling out the press with the article limit. California Freelance Writers United, a group of CA-based freelance writers, editors, and photographers, is advocating for the 35-submission cap to be removed. Although there have been no reports of companies being fined for violating the law so far (a proposed budget for 2020-2021 earmarks $20 million for enforcement), most of the talk around AB-5, across all industries, is that a one-size-fits-most bill isn’t helpful. Gonzalez, the author of the bill, even acknowledges this. The assemblywoman has already introduced a new bill, AB-1850, which, if passed, would further clarify the application of the law.

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Speaking with other POC freelancers based in Los Angeles, it’s clear that AB-5 was written without an understanding of how the media industry operates, especially for journalists of color. Lisa Kwon, who has written for LA-based publications L.A. Taco and Los Angeleno, began working as a freelance writer in 2019 and spent that first year figuring out what she wanted to cover long-term. “It allowed me to hone in on the different subjects and topics that I love writing about,” she said. “Towards the end of the year, I found myself dedicated to writing about California or communities within LA, whether it’s in the arts or uncovering different local beats.”

But Kwon worries that AB-5 will make writing about her home a risky financial decision. “It now puts me at a disadvantage to have opportunities to write about LA or California for these outlets, but only for a limited time.”

Some journalists have questioned how California writers and publications will be able to adequately cover the state with the AB-5 cap, and some publications are choosing to avoid working with California freelancers at all. Writer Emma Gallegos tweeted last month that The New York Times was seeking a CA real estate reporter, but with a catch — they were not hiring anyone who lives in the state.

In addition to writers who contribute to local publications, entertainment journalists who are based in California or write for California-based outlets have been unsure of where they stand with AB-5. Beandrea July, a culture writer and audio producer, transitioned from education to entertainment journalism through freelancing, but she had difficulty affording to go to film festivals when she was starting out. Last year, when July was sent to Sundance Film Festival by a publication, she paid all expenses out-of-pocket and was later reimbursed. “It takes 45 to 60 days for that to happen,” she said. “I was so excited to go that I was willing to shoulder that burden…when I look back on it now, I’m like, wow, that was crazy.”

This practice of shouldering travel costs, a widespread complaint for freelancers, will not go away under AB-5. This is a particularly acute concern for critics of color, most of whom work on a freelance basis. Jarrett Hill, the vice president of the National Association of Black Journalists, Los Angeles, recently looked into the demographics of a number of trade publications. “We realized that there were no black people on those staffs, or [publications] might have one black person out of a staff of dozens,”Hill said. “Black perspectives were always being written by a freelancer.”

I asked what that meant for journalists of color trying to enter the industry through freelancing. “It will probably skew that black and brown people are getting jobs less frequently or are just not going to end up getting work at all, and that the white folks will be staffed, because that’s what history is showing,” Hill said.

“Because freelancing is such a great way into being able to write, there is a chance that [AB-5 is] going to stunt the growth of the next up-and-coming writers if it’s not fixed,” he added.

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As a freelance writer, I’m waiting to see what happens with AB-5. I began freelancing because I want to write for a living, and it allows me to avoid paying tuition or business fees before I know what I want to do. I’ve also grown up seeing small business ownership as freedom. My dad became a truck driver when I was ten and I’ve seen him lose the truck he owned in an accident, work as a broker and employee until he could buy another truck, and then thrive as an owner-operator. He was always happiest as an owner, and he’s so proud of the autonomy and freedom he has running his own business. I want that, too.

However, I’ve experienced the problems with the gig economy firsthand. I’ve driven for DoorDash and Postmates for a little over a year while freelance writing and have seen the big gig-economy companies operate with little oversight. I’ve seen the labor market get so saturated with drivers that most workers only get a single $4 to $8 order an hour. I’ve been paid $10 for three hours’ work by DoorDash, in part due to the platform’s policy of pocketing tips. I’ve seen that type of wage theft be blasted in the media and public opinion, and only then were the companies held accountable.

So far, laws have failed to protect gig workers, who are exploited by companies daily. Last year, MarketWatch reported that Uber and Lyft had spent over $2 million combined in the first three quarters of that year on lobbying efforts, mostly on bills regarding worker classification. AB-5 is the first major bill aimed at gig economy workers to pass, despite companies’ attempts to stop it. AB-5 could help gig workers in the ride-share and delivery-driving industries unionize and gain more transparency. (If the companies don’t just sue their way out of it — Uber and Postmates are also challenging the law in court.)

I understand what AB-5 would offer: the chance to have bargaining power. A drivers’ union could negotiate for additional pay that would go toward car maintenance, or better insurance for accidents that occur during rides or deliveries. It could also enact pay transparency, so drivers can stop guessing at how they’re being paid. Still, there’s worry that the more a gig company gives to its drivers, the more it expects from them. Flexibility has always been the incentive; I can log onto the app whenever, or drop off the schedule if I don’t feel like driving. DoorDashing is great when I have a free weekend night and want to pay off more on a credit card, but I can’t depend on it for consistent income.

I have to remember that the on-demand economy was designed that way; it isn’t supposed to be stable work. Everything that makes it easy to become a driver — background checks with no interviews, flexible scheduling, using your own car — also makes it hard to do the job full-time. My question now is whether freelance writing can be sustainable full-time. There’s more freedom, deadlines instead of rushing to beat the app’s timer. The clients have been polite and easy to work with. With the right assignment, I can make up to $50 per hour. But compared with seeing what I’ve made at the end of each shift and a direct deposit each week, media companies’ typical net 30 takes some adjustment.

I really appreciate my steady clients so far. There’s a minimum amount a month I can reasonably expect to make, and that lifts a weight off my shoulders. I wonder if AB-5 will push that weight back down: if I’ll lose steady freelance clients, spend hours pitching widely with no compensation, and spend whatever I make on taxes. I fear eventually I won’t have anything to depend on but an elusive full-time gig. Sure, it would be nice, but every time I’m reminded that only 17% of newsroom staff in the US is non-white, health insurance and paid time off seem further away. When a policy hurts freelancers in the media industry, it more strongly affects journalists of color.

I’ve been following developments with AB-5 since late December and I still have more questions than answers. It seems like the best course is to write for a wider range of publications, maybe get a sole proprietorship, and pray that the law will be changed before it becomes a true barrier to entry for writers like me.

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