Two organizations representing freelance writers and press photographers have filed a lawsuit in federal court hoping to strike down a recently enacted law meant to protect drivers with ride-sharing services and others working in the largely unregulated “gig economy” but limits the amount of work journalists can do as independent contractors.
In the lawsuit filed on Dec. 18 against state Attorney General Xavier Becerra, the American Society of Journalists and Authors and the National Press Photographers Association claim that Assembly Bill 5, authored by Democratic Assemblywoman Lorena Gonzalez of San Diego and overwhelming supported by both Gov. Gavin Newsom and the Democrat-controlled Legislature, violates the First and 14th amendments, which guarantee a free press and due process and equal protection under the law, respectively. Combined, the two associations have more than 650 members in California.
The new law will also apply to app-based companies and other industries in which workers once considered independent contractors must be designated as employees and made eligible for such things as minimum wage and insurance benefits.
In a separate lawsuit filed Monday, Dec. 30, workers for Uber and Postmates, a food delivery service, also claim 14th Amendment violations. If drivers in both companies are reclassified as employees, they would be protected by laws granting workers minimum wage and overtime pay. They would also be forced to pay into workers’ compensation and unemployment insurance. The companies would have to pay half of their payroll taxes for Medicare and Social Security, but they would also be told when to work and where. That could make the jobs less attractive to many people who seek those jobs because they want to set their own schedules.
“AB5 is an irrational and unconstitutional statute designed to target and stifle workers and companies in the on-demand economy,” states the lawsuit, which also claims the law “irreparably harms network companies and app-based independent service providers by denying their constitutional rights.”
As it pertains to the news business, the law prevents freelance journalists from contributing more than 35 submissions a year to the same media outlet.
Local newspapers and news websites, including the Pasadena Weekly and Pasadena Now, which rely heavily on freelancers, have been searching for ways to maintain freelancers and adhere to the law, which took effect on Jan. 1.
“Dealing with California’s AB5 is challenging for already struggling community news media,” said James MacPhearson, who owns the website Pasadena Now. “Local newspapers have traditionally relied upon interns and freelance writers to balance their costs with the limited income implicit in their smaller hyper-local markets. The higher costs and loss of flexibility in assigning stories that AB 5 imposes are huge problems for publishers — and likely even worse for freelance writers.”
Local Assemblyman Chris Holden (D-Pasadena) and State Sen. Anthony Portantino (D-Pasadena) voted for the bill. Neither man could be reached for comment by deadline Tuesday.
Gonzalez’s bill passed along party lines, with a 56 to 15 vote in the Assembly and a 29 to 11 vote in the Senate. On Sept. 18, Newsom, a Democrat, signed the bill, which became law on New Year’s Day.
Democratic presidential candidate Sen. Bernie Sanders of Vermont has introduced a similar federal bill supported by Sen. Cory Booker (D-New Jersey), one of his opponents in the presidential race.
Democratic US Sens. and former Democratic presidential candidates Kristen Gillibrand (D-New York) and Kamala Harris (D-California), Becerra’s predecessor as state attorney general, have both said they support AB5.
In August, Democratic presidential candidate Pete Buttigieg joined a rally of Uber and Lyft drivers supporting the bill. According to news reports, Buttigieg’s campaign has spent more than $10,000 on Uber and Lyft rides.
So far, only Democratic presidential hopeful Joe Biden has not mentioned the law in the campaign. However, in a statement, Symone Sanders, his press secretary, said “Companies should not be able to misclassify workers as independent contractors in order to skirt labor laws.”
The lawsuit filed two weeks ago states that “In violation of the First and Fourteenth Amendments to the United States Constitution, AB5 singles out ASJA’s and NPPA’s members who are writers, editors, still photographers, and visual journalists by drawing unconstitutional content-based distinctions about who can freelance — limiting certain speakers to 35 submissions per client, per year, and precluding some freelancers from making video recordings,” the lawsuit states.
The lawsuit further argues that AB5 sets up separate laws for public speakers, allowing an exemption for public speakers who are engaged in marketing, graphic design, grant writing and fine arts.
However, public speakers that engage in still photography, photojournalists, freelance writers and editors are subjected to the 35-item submission limitation.
“By enforcing the irrational and arbitrary distinction among speaking professionals, defendant, acting under color of state law, irrationally and arbitrarily discriminates against plaintiffs’ members in violation of their right to equal protection of the laws,” the lawsuit states.
The two organizations filed the lawsuit the day after VOX Media’s online SB Nation site announced it would no longer accept submissions from 200 freelancers. SB Nation covers sports in California.
In a blog post, John Ness, director of SB Nation Team Brands, wrote a “bittersweet note” of thanks to the California freelancers.
“In 2019, SB Nation contractors who live in California or contribute to California’s team sites did some truly amazing work: They ran 25 different communities, with all of the sites’ managers pulling together their own unique recipe for smart coverage. Contractors ran social media through the nerve-racking ups and downs of game time and moderated our sprawling communities. Together, over 200 people on California sites wrote thousands of blog posts in 2019 — pieces so diverse in their conception that it’s impossible to describe them en masse except to say they were written for a community of fellow fans.”
Newspapers aren’t the only ones worried about complying with the new regulations. In November, the California Trucking Association challenged the law, claiming that 70,000 independent truckers will be unable to work because of it.
“AB5 has certainly presented unfortunate issues for our company and our fleet,” said Steve Crawford, general counsel of New Prime, a bonded freight shipping and trucking company. “Like many others in our peer group, we have obviously ceased affiliating with any new independent contractors that live in the state of California or would run exclusively intrastate.”
New Prime is offering a relocation package to independent contractors working with the company. Crawford said California contractors are being offered $1,000 to $5,000 to leave the state and continue working for the carrier.
The state law adopts an “ABC” test to determine employee status, according to the labor union-funded Economic Policy Institute (EPI). The test stipulates that workers may only be considered independent contractors when a business proves the workers are free from control and direction by the hiring company; perform work outside the usual course of business of the hiring entity; and are independently established in that trade, occupation, or business.
The ABC test came out of a 10-year lawsuit that was decided by the state’s high court in 2018. In that lawsuit, Dynamex Operations West v. Superior Court, drivers for Dynamex argued they should be classified as employees because they were required to wear the company uniform and display its logo while providing their own vehicles and carrying all the costs associated with deliveries.
The state Supreme Court agreed with the drivers, but the court’s ruling only applied to workers seeking minimum wage and overtime pay. It does not apply to benefits, breaks and paid parental leave.
“Who knows how much hurt AB5 will inflict on community papers; in theory, it doesn’t have to,” said PW Contributing Music Editor Bliss Bowen, a longtime freelancer. “But in the 21st century the world is anything but perfect, and journalism’s bottom line reality dictates that AB5 will probably have a grave impact on the professionalism and stability of community newspapers. In this world, no matter how worthy its intent, AB5 will more heavily burden the already decimated ranks of editors and copy editors, and could damage the quality of community papers. It doesn’t have to be that way, and there are too many unknowns to predict anything with certainty, but conditions are in place for that to be the result.”