A.B 5, Freelancers, and the Dilemmas of Regulation

On the one hand, as Katie Kilkenny points out, A.B 5’s statutory exemption for freelance journalist really does threaten to cause a great deal of disruption to freelance writers:

California-based freelance writer Arianna Jeret recently learned about Assembly Bill 5 and is now concerned she and her colleagues in CA may soon be speaking about their jobs in the past tense…

The bill, which cracks down on companies — like ride-sharing giants Lyft and Uber — that misclassify would-be employees as independent contractors, has been percolating through the California legislative system for nearly a year. It codifies the 2018 Dynamex decision by the State Supreme Court while carving out some exemptions for specific professions.

But the exemption for freelance journalists — which some have only just learned about via their colleagues, press reports, social networks and/or spirited arguments with the bill’s author on Twitter — contains what some say is a potentially career-ending requirement for a writer to remain a freelancer: If a freelance journalist writes for a magazine, newspaper or other entity whose central mission is to disseminate the news, the law says, that journalist is capped at writing 35 “submissions” per year per “putative employer.” At a time when paid freelance stories can be written for a low end of $25 and high end of $1 per word, some meet that cap in a month just to make end’s meet.

In the short term, there are going to be a lot of freelance writers – including more than a few friends of mine – who are going to hit the cap that the exemption sets up and will find themselves unable to write more for that publication (unless that publication hires them as a regular employee, more on that in a second). In the long run, freelance writers in California need to increase their rates to compensate (to say nothing of pushing for additional reforms), but without the structure of a union’s hiring hall, the collective action problem is incredibly difficult to surmount.

On the other hand, it’s hard to know what else Assemblymember Lorena Gonzalez could have done without gutting the purpose of the bill, which was to force employers to stop mis-classifying workers as independent contractors to avoid paying minimum wage or overtime, providing health insurance, retirement, paid leave, and other benefits, or letting them join unions. The higher the cap, the more newsrooms could continue to lean on a vast pool of freelance journalists to do the same work as their regular employees, even as they cut thousands of newsroom jobs.

At the end of the day, I don’t think it’s possible to write an economic regulation that bars employers from exploiting their workers in a completely painless way. When the U.S banned child labor, many poor families lost income that they were counting on. A similar thing occured when unions managed to accomplish the herculean task of de-casualizing an industry; thousands and thousands of (poor, underemployed) workers lost their jobs so that those who remained could earn a living wage.

I’ve been thinking about this a lot lately as I’ve started the process of research for my next book – this one on the history of thinking about the minimum wage in the U.S – because even in at this early stage in the process, it’s clear to me that progressives used to have an entirely different language for talking about these issues. Take this speech from FDR on the passage of the National Industrial Recovery Act:

In my Inaugural I laid down the simple proposition that nobody is going to starve in this country. It seems to me to be equally plain that no business which depends for existence on paying less than living wages to its workers has any right to continue in this country. By “business” I mean the whole of commerce as well as the whole of industry; by workers I mean all workers, the white collar class as well as the men in overalls; and by living wages I mean more than a bare subsistence level – I mean the wages of decent living.

This was an astonishingly bold position to take at a time when unemployment was hovering around 25%, but as those of you who read my first book know, a very different political and economic logic emerges when the government stands ready to put millions and millions of people to work directly (much less establish the right to a job in law).

As it stands, even with extremely low unemployment rates, contemporary progressive legislation like A.B 5 has to tightrope-walk across the minefield of being labelled by the Chamber of Commerce as “job-killing legislation.” One can only imagine how the Hollywood Reporter article might read differently if a “California State Writers Project” was ready to provide short-term work for freelance writers.