A national version of AB 5 is slated, which radically revises employment laws, is slated to be voted on in the House of Representatives this week with backing of California's two Senators
By Miriam Raftery
Image courtesy of #FightForFreelancers, which is battling a measure similar to California's AB 5 law. The seriously flaws legislation in our state is being emulated across the nation even as lawsuits, reform and repeal measures are pending in California.
February 4, 2020 (San Diego) – State Senator Brian Jones (R-Santee) is coauthoring multiple bills to repeal and/or reform Assembly Bill 5, which took effect January 1, decimating independent contractors in a wide range of fields as well as the businesses and nonprofits that have long relied on freelancres.
AB 5 was introduced by Lorena Gonzalez-Fletcher (D-San Diego), a former labor leader who touted it as a way of cracking down on companies such as Uber and Lyft for exploiting workers and forces even small businesses and nonprofits to make most workers employees rather than independent contractors.
But the costs of doing so are prohibitively high for many businesses and organizations, putting their futures at risk. The law has also had devastating effects on freelancers across at least 150 fields including musicians, writers, artists, actors, dancers, nurses, consultants, translators, photographers, teachers and other independent contractors who value their freedom and flexible schedules and don’t want to be employees.
Some are now unable to find work due to AB 5, as out of state companies cancel gigs with California freelancers, unwilling to risk criminal penalties and huge fines for misclassifying workers under the convoluted, complex and confusing terms of the law. Other freelancers have shelled out high costs to start their own companies in order to qualify for business-to-business exemptions in the bill, but receive no benefits for those expenditures.
Jones says AB 5 has been “horrible for California’s economy, workers and businesses. AB 5 is particularly harmful to less traditional businesses, particularly for those owned by women and persons of color who prior to AB 5 were working to get ahead in the California economy.”
He adds, “Hardworking Californians should have the basic right to decide if they want to be an independent contractor or in a traditional employer-employee arrangement. If the employer and the worker jointly agree to flexible work hours or unconventional work settings, the government should keep its nose out of it.”
Legislators have been deluged by calls, emails and visits from irate independent contractors who want AB 5 repealed or reformed.
File photo, right: State Senator Brian Jones with ECM editor MIriam Raftery
Specifically, bills coauthored by Jones include:
ACA 19: This proposed constitutional amendment titled the “Right to Earn a Living Act” by Assemblyman Kevin Kiley would overturn AB 5. It states, “Individuals have a right to pursue a chosen business or profession free from arbitrary or excessive government interference” and that state law “shall not prevent an employer from agreeing to an employee’s request for a flexible work schedule,” among other provisions.
AB 1928: This Assembly bill by Riley, coauthored by Jones, would immediately repeal AB 5 and restore the Borello standard for independent contracting which was long used in California before AB 5 and before the recent Supreme Court decision in Dynamex.
SB 868, authored by Senator Patricia Bates and coauthored by Jones, would exempt freelance journalists who object to what they say is an arbitrary limit of 35 submissions each year to each media outlet.
SB 875: This Senate bill coauthored by Jones and Senator Shannon Grove would allow freelance translators and interpreters to remain as independent contractors and specifically allows them to continue serving the deaf and hard of hearing.
SB 881: This bill authored and introduced by Senator Jones will exempt musicians from the requirements of AB 5, just as some other professions such as doctors, lawyers and accountants have already been exempted. Jones says that he immediately received “calls from labor attorneys representing the music industry in Hollywood that are fired up about repealing AB 5. So I think we’re going to have some of the most influential Hollywood faces and voices coming out against AB 5 and helping us repeal AB 5 and drive it back into he depths of legislative dust-bin that it belongs in.”
A petition to exempt musicians from AB 5 drew 50,000 signatures in just days, prior to the introduction of Jones’ bill.
"Jazz musicians in the 1920s coined the term 'gig' for a temporary or occasional show they would do, such as performing a few songs at a music festival, teaching a private music lesson, or producing a couple of songs for a client," states Senator Jones. "Musicians and music industry professionals are clearly freelance occupations, yet under AB 5 for each 'gig' a musician or producer books, the hirer must add them to their payroll as an employee and start paying fees such as unemployment insurance."
Whether any of these Republican-authored bills can make it through a Democratic-controlled legislature in Sacramento remains to be seen, but likely such bills only can win passage if those hurt by the bill make their concerns known to their legislators, to Democratic party and legislative leaders, and to Governor Gavin Newsom, who would need to sign any reform measures for them to become law.
Uber and Lyft, meanwhile, who were the targets of AB 5, are thumbing their noses and not following the law. The companies are backing a ballot measure to exempt their industry from AB 5 regulations and one has launched a new business model that asks customers to name their own prices -- an action drivers say amounts to a race to the bottom for their pay, but that aims to avoid making drivers employees.
AB 5 did carve out exemptions for some occupations such as lawyers and doctors – professions that are major donors to Democratic politicians. But not for an army of other occupations, many without the financial resources to file lawsuits.
For newspapers and journalists who freelance for news organizations, the bill also tramples on First Amendment freedom of the press and free speech rights, as well as copyright protections for freelance writers, who would be forced to give up copyrights and resale of their works if they were to become employees. It prevents news organizations from using freelance video purchased from the public or any non-employee without a businses license or limited liability corporation -- a clear suppression of the public's right to access breaking news videos from eyewitnesses to events such as wildfires, plane crashes, police brutality and more.
In a press release issued yesterday, California Freelance Writers United founder Maressa Brown says of AB 5 in a press release, “This misguided law is not only failing to work for writers and journalists, but it has also resulted in the loss of hundreds of thousands of dollars of income for approximately 56 percent of CFWU’s more than 1,4000 independent contractors, small businesses and other members.”
Randy Dotinga, past president of the American Society of Journalists & Authors, says, “AB 5 is killing careers and forcing us to consider leaving this state we love.” ASJA and the National Press Photographers Association have filed a lawsuit challenging AB 5 on constitutional grounds in one of several suits filed seeking to overturn AB 5.
The California Chamber of Commerce, in a piece titled “Oh, What a Relief It Isn’t – AB 5 and the B2B Exemption” published on Capitol Insider, points out that even the business-to-business exemption is fraught with so many pitfalls as to be a veritable minefield that renders the exemption “virtually inoperable.”
An article in Forbes reports that AB 5 has left “women business owners reeling.”
The California Newspapers Association reports at least one newspaper ceased publishing in January due to AB 5 and others are threatened. The organization is asking those harmed by AB 5 to share their stories at AB5Stories.com.
KUSI TV in San Diego has run a series on how the new law has devastating people in many occupations locally, ranging from translators in the immigrant community to journalists. The station implored anyone helped by the bill to come forward and be interviewed, even sticking the post to the top of its Twitter feed for days, but reported it had not received a single response.
Gonzalez-Fletcher, meanwhile, has show outright disdain toward some who have implored her to fix or repeal the measure to protect freelancers’ livelihoods.
When a Californian upset about the bill tweeted sarcastically to Gonzalez-Fletcher, “Don’t worry, people won’t be able to do 2-3 side hustles anymore. Thanks to you and #AB5”, Gonzalez-Fletcher responded, “They shouldn’t fucking have to. And until you or anyone else that wants to bitch about AB 5 puts out cognizant policy proposals to curb this chaos, you can keep your criticism anonymous. Good God.” She was equally dismissive in an interview aired on KUSI, where the station posted her profane Tweet.
Teachers in some school district who hire their own substitute teachers, optometrists in retail outlets who hire replacements when on vacation, yoga and pilates instructors, are among others horrified to learn that they may now have to become employers if they want time off.
ECM priced out the cost of hiring even a single employee, as a nonprofit. It would be more than $800 up front for worker's compensation and disability insurance, plus 10% of what the worker makes or more for withholdings for SSI and taxes, as well as $150 a month to hire an outside company to do payroll taxes, withholdings and reportings. When we asked the state for information on how to do this ourselves, if we were to hire one or more workers, we were sent a document of over 180 pages in font too small for our editor to read. To hire even someone for a one-time gig such as passing out flyers for an event, something our nonprofit formerly paid $15 an hour for a couple of hours, would now cost all of the above, obviously prohibitive.
To date, however, despite the carnage the bill has caused, Democrats have failed to take action – only Repubilcan legislators thus far have attempted to introduce legislative remedies. Governor Gavin Newsom’s budget includes hefty sums for enforcement against those found violating AB 5.
While Gonzalez-Fletcher has issued “clarifications” and a place holder bill to further clarify her intent, she has made clear she had no intent to repeal her bill or make the major changes that would be needed to protect the vast numbers of independent contractors, small businesses and nonprofit organizations being harmed—such as the Sierra Madre Playhouse, a small nonprofit award-winning theater forced to cancel its production of Charlotte’s Web because AB 5 “added more than $38,000 to the budget” for the production, according to a statement issued by the theater’s president David Gordon and artistic director Christian Lebano.
Yet a federal version of this law, HR 2474 known as the Protecting the Right to Organize act, is slated to be voted on in Congress this week – and it has the backing of California’s Senators Dianne Feinstein and Kamala Harris, who have coauthored Senate versions of the measure.
Were it to pass, the negative impacts on the U.S. economy could be substantial, cutting income to freelancers and also putting some smaller companies out of business, or curtailing their income-generating potential.
The sixth annual “Freelancing in America” survey released Oct. 3, 2019 by Freelancers Union and Upwork found:
- 35% of the U.S. workforce, or 57 million people, are freelancers.
- Freelance income makes up nearly 5% of the U.S. gross domestic product, or nearly $1 trillion.
A poll in Dec. 2019 on AB 5 done by Contently found:
- 88 percent of independent contractors oppose the law
- 75 percent say they prefer freelancing over a full-time job
- 87 percent say they do not trust lawmakers to represent their best interests
Similar bills are surfacing in several state legislators, including New Jersey, where the hashtag #fightforfreelancers has been launched.
After freelancers held a Repeal AB 5 rally at the state capitol in Sacramento and lobbied legislators this week, big labor fought back by launching the hashtag #ABworks for supporters to tell their stories.
It was quickly taken over by opponents who tweeted sarcastic messages about how AB5 is not working for them. Opponents are also using hashtags #AB5Stories and #AB5 to tell how AB5 has harmed them.
Many freelancers want to work from home and/or have flexible hours and work with multiple clients, including parents of young children, seniors, people with health or disability issues, caregivers for aging parents, and people who live in remote locations.
At the rally to repeal AB 5, freelance journalist, screen writer and novelist Walter Kirn spoke, recalling how he began freelancing while staying home to care for his infant daughter. His novel, Up in the Air, became an Oscar-nominated movie starring George Clooney. View video of rally.
“I couldn’t have had my career if I wasn’t free to freelance,” Kirn said. “My wife, who teaches journalism, and who is herself a freelance writer, could not have had her career.” Now, he concludes, AB means that her students graduating won’t have the opportunities that he and his wife enjoyed. This bill cuts them off at the knees. There are careers lost today because of AB 5, but what haunts me even more are the careers that will never begin.”