What Calif. bill showcases about pitfalls in legal approaches to securing protections, decent pay for freelancers

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In September, California marked the first-year anniversary of a controversial law that extends employee status to gig workers. Assembly Bill 5 frames work for app-based companies and freelance journalism as an issue of worker misclassification. AB5 can impact out-of-state freelance journalists, including Canadian freelancers who do business there.

Yet there are other legislative and advocacy efforts to support freelancers, which I presented at the SPJ 2020 Journalism Conference in September. The debate over AB5 creates an opportunity to focus instead on non-payment, non-timely payment and freelance contributors’ collective agreements.

What is AB5 and why is it so controversial among freelancers?

California Gov. Gavin Newsom approved AB5 on Sept. 18, 2019 and it went into effect Jan. 1. AB5 codified into law the ABC test used to classify workers as employees or independent contractors. The ABC test came out of the landmark 2018 Dynamex Operations West, Inc. v. Superior Court of Los Angeles County decision.

A hiring entity must classify a worker as an employee unless they meet all conditions of the ABC test, according to California’s Employment Development Department:

  1. “The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  2. The person performs work that is outside the usual course of the hiring entity’s business.
  3. The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”

The Canada Revenue Agency lays out a similar two-step test for Canadian workers in RC4110 Employee or Self-employed? to determine if a worker is an employee or self-employed.

Workers may prefer freelance to employee status because they have more flexibility and control over their labour, according to my research. Yet freelancers were outraged over AB5 because it limited an individual freelancer to producing only 35 pieces per year per publisher. Some freelancers lost work due to AB5: Certain companies, including Vox Media, stopped working with California freelancers; others, such as Business Insider, adhered strictly to the 35-submission cap.

Due to a backlash from freelance journalists — including a lawsuit against California — Newsom signed AB2257, an amendment to AB5, on Sept. 4. Although AB2257 removes the 35-submission limit for some freelancers, it’s “not applicable to a still photographer, photojournalist, videographer, or photo editor who works on motion pictures,” including broadcast journalists.

Additionally, neither AB5 nor AB2257 address concerns over payment. Sixty per cent of U.S. freelancers said they were worried about non-payment or late payment, according to the Freelancing in America: 2019 report. And more than 33 per cent of independent contractors who responded to a recent City of Minneapolis survey said they lost income in the last 12 months due to a hiring party’s failure to pay, underpayment or late payment for work performed. There was an average loss of over US$750 per gig. 

Freelance labour legislation in Minneapolis and New York

To address these issues, Minneapolis City Council passed the Freelance Worker Protections Ordinance on July 31. It established protections for freelance work based in Minneapolis, mandating written contracts and timely payment and increasing opportunities to enforce those contracts. The ordinance will take effect Jan. 1, 2021. 

New York City’s Freelance Isn’t Free Act has also guaranteed freelancers a written contract, and timely and full payment since 2017. Like the Minneapolis law, it protects freelancers against company retaliation.

By requiring contracts and providing a mechanism to enforce them, these laws help reduce the theft of freelance workers’ income. They also promote business and economic development, supporting self-employed artistic and creative workers. These laws can further minimize the burden that’s imposed on the public when freelancers are forced to resort to public assistance due to underpayment or non-payment of earned income.

Freelance journalists’ unions and collective agreements

Beyond legislation, some media companies have signed freelance contributors’ agreements. 

In the United States, The Nation and Jacobin negotiated agreements with the National Writers Union in 2017 and 2018, respectively. Freelancers don’t have to be a member of the union to benefit. These agreements set minimum standards for pay rates, timely payment and formal procedures to address grievances. Freelancers are still welcome to negotiate higher rates, but the companies can’t pay them less than the minimum rates.

The Writers Guild of America, East and WGA, West also have a standard freelance public television agreement with PBS. This agreement sets out a schedule of minimum compensation for documentary, public affairs and news programs. It also lays out rights and royalties for rebroadcasts of writers’ work and credit for authorship.

CBC freelancers fall under a collective agreement with the Canadian Media Guild. This arrangement, which was made after a 1982 Canada Labour Relations Board decision, lays out minimum pay rates, copyright protection and a grievance procedure. It established that freelancers were entitled to collective bargaining because they had to use the public broadcaster’s equipment to do their work and were economically dependent on their employer.

However, CBC’s agreement hasn’t solved the broadcaster’s long-standing structural problems regarding freelance and temporary employment. CBC freelancers and temporary workers, or “casuals,” may work alongside permanent employees, doing the same tasks as them. Freelancers and temporary employees can even sign multiple contracts, making “permalancing” the norm but without the benefits, formal feedback and long-term job security permanent employees have. The CMG Toronto Temp Committee has called into question the labour practices surrounding temporary work for helping to perpetuate institutional racism at the broadcaster.

These collective agreements and laws aren’t perfect. Yet they could open up a larger conversation on how to improve labour protections and rights for freelancers without only focusing on employee misclassification. If they become standardized across the media industry, they could ensure there’s base-level support and decent pay for freelancers.

Errol Salamon is a contributing editor at J-Source. He is a senior lecturer in digital media and communication in the department of media and performance at the University of Huddersfield. He taught in the Hubbard School of Journalism and Mass Communication at the University of Minnesota. Salamon is also co-editor of the book Journalism in Crisis: Bridging Theory and Practice for Democratic Media Strategies in Canada (University of Toronto Press, 2016).