Updated Tuesday, February 18 at 7:05 pm ET with input from California Freelance Writers United and again on Thursday, February 20 at 2:49 pm with comment from the National Writers Union.
California lawmakers are reconsidering a controversial aspect of a newly implemented state law which limits freelance journalists to 35 articles per-year in the same publication before they must be considered full- or part-time employees, Assemblywoman Lorena Gonzalez announced earlier this month.
Evidently the result of concerns raised by freelance journalists and at least two professional associations that represent them, Gonzalez—who introduced the law, AB 5, last year—announced on February 6 that state lawmakers have reconsidered the 35-submission limit and sought to remove that provision as part of AB 1850, a follow up bill to AB 5 which clarifies the types of employees that can be considered independent contractors.
“Based on dozens of meetings with freelance journalists and photographers, we have submitted language to legislative counsel that we hope to have available next week to put into AB 1850 which will cut out the 35 submission cap and instead more clearly define freelancer journalism,” Gonzalez said.
The change, if implemented, would apparently exempt some freelance writers from the law regardless of the amount of work they contribute to a given publication, but some caveats remain.
Update: After this story’s publication, freelance journalist group California Freelance Writers United, which spoke with Gonzalez about the bill last week, noted that the elimination of the 35-submission cap would not amount to a full exemption for freelance writers.
“We still have to classify for the B2B exemption or, for others, the professional services exemption,” CAFWU wrote. “It’s not a full exemption. The cap is, as far as we know, being eliminated and we can be exempt from it but we have to meet certain other criteria. It’s not a free and clear blanket exemption.”
An amended version of AB 1850, released on Friday, preserves the language regarding the 35-article limit, although Gonzalez stated in a Tweet last week that further amendments can still be made and that the bill is a work in progress.
“It’s also important to note that this amendment bill, AB 1850, can continue to be amended until August,” CAFWU added. “There is still work to be done but this is how the legislative process works.”
On December 16, John Ness, executive director at Vox Media’s SB Nation, announced that the site was replacing over 200 California-based freelance contributors with a new team of full-time employees dedicated to covering the state’s sports teams.
Although noting that this shift was one SB Nation had already considered making for the past two years, Ness said AB 5 made it “impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content ‘submissions’ per year.” Rather than hire contributors from other states outside of AB 5’s jurisdiction, Ness said SB Nation was encouraging the more than 200 freelancers impacted by the change to apply for a limited number of full- or part-time roles, which he later clarified would amount to “nearly 20 people.”
Proponents of the law, including Gonzalez, have suggested that SB Nation‘s contributor network is an example of precisely the type of exploitation the law is meant to eliminate—a class action suit filed last year alleges that the flat fees the site paid its contributors failed to meet federal minimum-wage standards—while critics portray AB 5 as legislative overreach, arguing that the bill’s “one-size-fits-all” approach unfairly punishes writers who depend on freelance work to make a living.
The latter stance has been endorsed by at least two professional organizations representing freelance journalists, the American Society of Journalists and Authors and the National Press Photographers Association, who sued the state of California in December, specifically calling the 35-submission limit “unconstitutional discrimination against journalists.”
“The idea that 35 articles in a year is somehow comparable to an actual salaried job, that at that point they may as well hire you, is ludicrous,” theater critic Robert Hurwitt told the San Francisco Chronicle last week.
On January 4, a federal judge in California’s Central District denied the petitioners’ request for a temporary restraining order (TRO) blocking the law from taking effect, while a different federal judge in California’s Southern District granted a similar TRO exempting truck drivers. Arguments for and against the ASJA and NPPA’s motion for a preliminary injunction will be heard on March 9, while AB 5 went into effect on January 1, meaning publishers have had to make sure they’re compliant in the face of potential fines of up to $25,000 per violation.
Other groups, like the National Writers Union, which worked to implement the exemption for freelancers who contribute 35 articles or less in a given year, have steadfastly supported the law, arguing that AB 5 “will require multi-billion dollar corporations to respect labor laws and pay their share of taxes to cover employees’ rights to unemployment compensation, paid family leave, workers compensation and much more.”
Meanwhile, in addition to AB 1850, several bills have been introduced in California since the start of the year that would either limit the scope of AB 5 or effectively repeal it entirely, including one that specifically seeks an exception for freelance journalists. And while the ultimate impact of AB 5 remains murky, similar laws targeting the gig economy have been proposed in New Jersey and New York, among other states, and H.R. 2747, which would amend the National Labor Relations Act and was passed by the U.S. House of Representatives and referred to the Senate earlier this month, contains no exemptions for freelance journalists.
“We’re glad that [Gonzalez] is doing this and have been advocating for this from the beginning,” writes NWU president Larry Goldbetter in an email to Folio:. “Really, the number of submissions is not the determining factor in whether or not you are an employee or a contractor. That is determined by the ABC test. We have been contacted by her office and we support this amendment. There are also exemptions you can qualify for both under professional services and B2B. The bill we are working on with the NY DIRECT Coalition in New York has a professional services exemption and no limit on submissions. “