The Hill: End it, don’t mend it

When California’s controversial AB 5 law took effect Jan. 1, independent contractors suddenly found their ability to make a living in the Golden State in jeopardy. The public outcry from entrepreneurial freelancers and gig workers, who faced lost work opportunities and declining incomes, was powerful. Their protest intensified a couple of months later, when the pandemic and sharp economic contraction struck.

In response, California lawmakers recently passed a “fix it” bill, AB 2257, to address the many practical problems created by the earlier law. Gov. Gavin Newsom signed that new law on Sept. 4. Unfortunately, those “fixes” are mostly modest, and only double down on the political horse-trading that made AB 5 such a mess in the first place. If California policymakers want to fix the problems they created, there’s a better way: Scrap this misbegotten law entirely.

AB 5 imposes a three-part test under California law to determine if someone is an independent contractor or employee. The key provision is that anyone performing work within the “usual course of the hiring entity’s business” must be classified as an employee, not a contractor. The goal was to target gig economy mainstays such as Uber and Lyft — but the law’s weight fell on California’s vast population of freelancers and independent contractors.

That means even freelance journalists contracted to write occasional columns or take photographs at infrequent events are working in the “usual course” of a publication’s business — i.e., creating journalistic content — and had to be classified as employees rather than contractors. The same goes for session musicians, stand-up comedians, opera singers, hair stylists, translators and others whose work falls within the “usual course of the hiring entity’s business.”

The results of AB 5 were catastrophic for gig workers. Weekly columnists in San Francisco who write about cannabis and the taxi industry were suddenly out of a job. The Tahoe Music Festival called it quits after more than 40 years of classical music. The Island City Opera postponed its 2020 season indefinitely. Dozens of publications blacklisted California writers; one website even refused to consider California freelancers for a local California beat — only out-of-state writers would be considered to write about local issues.

AB 2257 lifts a few of those burdens. Some journalists have more freedom to freelance, many gigging musicians can play again, comedians can return to clubs, and barbers can rent a chair in a salon once more. These and other exceptions to AB 5’s ban on independent contracting take effect immediately

But not everyone was lucky enough to score an exemption. Take freelance journalists, for example, who got an especially raw deal under AB 5. They were limited to an arbitrary 35 submissions per publication, per year, and were banned from shooting videos. By comparison, a freelancer working on graphic design or marketing projects faced no such restrictions under AB 5. Pacific Legal Foundation (PLF) sued on behalf of the American Society of Journalists and Authors (ASJA) and the National Press Photographers Association (NPPA) to overturn AB 5’s arbitrary and discriminatory limits on journalism.

While AB 2257 strikes the 35-submission limit and substantially lifts restrictions on freelance video recording for newspapers and other web platforms, photojournalists still can’t freelance if their clients are a television station or broadcast news outlet.

And, journalists still face limits that do not apply to other types of speech, such as not being able to work primarily from a client’s location and vague rules about when a freelancer can do the same work as an employee. Those content-based restrictions on speech violate the U.S. Constitution. PLF will keep fighting on behalf of ASJA and NPPA until California’s content-based limits on freelancing are lifted entirely. The freedom to freelance shouldn’t depend on what you have to say.

Fundamentally, AB 2257 is flawed to the core for the same reason as AB 5: It imposes a bad policy and then carves out dozens of exceptions to disguise the reality of that policy blunder. There are now more than 75 exceptions to California’s independent contracting ban. If a law requires dozens of exceptions to avoid destroying the careers of successful independent professionals, it’s a strong indication that the law’s basic premise is flawed.

This is what happens when you put politicians in charge of who can work — everyone has to lobby for their own special carve-out, and the only winners are the lawmakers who trade the freedom to work for political genuflection. Now each legislative session will bring a new parade of professionals to Sacramento, begging for relief from the “help” offered by lawmakers. To avoid that fate, California needs to free freelancing by repealing AB 5 entirely.

This op-ed was originally published by The Hill on September 30, 2020.