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Independent contractor bill advances in senate, limits freelance writing work

REGION — A bill which could reshape independent contract labor, and the California economy at-large, advanced on July 10 in the California Senate.

The bill, Assembly Bill 5, passed in the Senate Labor, Public Employment and Retirement Committee. It did so with new amended language, including limiting the number of times freelance work journalists, writers and others who “provide content” to up to 25 times per year.

The amended provision also mandates that those content providers get to pick both the location and hours of their work, while calling for them to receive at least twice the amount of the minimum wage in completing it. Once the 25 pieces of content are complete — with “content” left undefined as a concept — that worker would have to receive at least part-time employee status.

The bill’s sponsor, Assembly Appropriations Chair and Latino Caucus Chair Lorena Gonzalez (D-San Diego), attended and spoke at the hearing preceding the AB 5 vote and praised its committee passage.

“If you feel like an employee, if you work for a company and do their business, guess what? You’re an employee. Pretty basic, right?” said Gonzalez at a rally with union workers outside the California State Capitol after AB 5’s passage. “And now, we have an opportunity to codify that and change the lives of millions of workers in California.”

AB 5 aims to codify and clarify the Dynamex Operations West, Inc. v. Superior Court of Los Angeles California Supreme Court ruling issued in 2018. One of its central targets is the “gig economy,” and companies which rely on contractor labor such as Uber and Lyft.

Dynamex established the “ABC test” to determine whether a worker should receive contractor classification. The three prongs include: “(A) the worker 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;” (B) “that the worker performs work that is outside the usual course of the hiring entity’s business;” and (C) “that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”

Introduced in December, AB 5 has now gone through multiple rounds of amendments, originally facing opposition by professions ranging from some media professionals, travel agents, truckers, and others. The amendments have addressed some of those grievances.

One of the more vocal opponents, however, has been the journalism industry — including The Coast News — and the latest amendments aim to resolve some of those concerns. But qualms still remain among some, including the Society for Professional Journalism’s San Diego chapter.

“While we agree that employers need clarity on how to classify their workers, SD-SPJ and other media organizations have asked Gonzalez to consider adding exemptions to the bill that will allow California-based freelancers to continue to work and media companies to continue to hire them,” wrote the organization in a July 15 blog post. “As introduced, the bill would have required newsrooms to make freelance writers part-time employees — something editors will tell you is easier said than done for reasons that have nothing to do with the worker exploitation this bill seeks to address.”

California News Publishers, a trade association representing the state’s news industry, also opposes AB 5, publishing its own amendments in response. Many of the prongs are similar to those in the latest version of AB 5, but there is no limit on the number of times a reporter can “provide content” to any client and it would only apply to a defined “news organization.”

In response to the Society for Professional Journalists article, Gonzalez threatened to pull the media industry amendment provision in its entirety.

“You’re troubled by recent changes?” she wrote on Twitter. “I will be happy to cut them all out to have no mention of journalists if that’s what you prefer?”

Gonzalez did not directly cite which media organizations or associations helped craft the 25 pieces of content number in response to a request for comment.

“After many discussions with dozens of journalists and publishers, it’s clear that there is a bright line between a true freelance journalist and what would otherwise be a part-time employee because of the amount of control a publication has over a journalist’s work that is regularly receiving assignments,” Gonzalez said. “It’s clear that producing content more regularly than every other week — or 25 times a year — for the same publication shows that business has the kind of control that you see from an employer.”

But Gonzalez did cite a few unions who had expressed concerns with the California News Publishers framework on Twitter.

“It would allow a company to convert 100% of their workforce to IC, would threaten current International Alliance of Theatrical Stage Employees, Screen Actors Guild — American Federation of Television and Radio Artists & Writers Guild of America West jobs,” she wrote. “Also could be used anytime a newsroom tried to unionize.”

Senator Jerry Hill (D-San Francisco), the chairman of the Senate Labor, Public Employment and Retirement Committee, called for more transparency in how certain industries landed exemptions in the minutes before the AB 5 vote took place at the July 10 hearing.

“One of the most commons questions I get from my constituents is why the bill looks the way it does. In some cases, the answers are easy and in other cases, less so,” Hill said. “In a bill this far-reaching, there’s a need for maximum transparency and communication in why some occupations are in the bill and others aren’t.”

Sept. 6 is the last day any bill can be amended and Sept. 13 is the last day for any bill to pass. Hill said that, when all is said and done, many workers might be disappointed with the end product.

“I want to make one thing clear, we’re not able in this bill to address every individual who has reached out to the legislature for some solution,” Hill said. “I think that’s clear. We’re not going to see that in the legislation.”

Photo Caption: From left, Caitlin Vega, legislative director of the California Labor Federation and Assemblywoman Lorena Gonzalez (D-San Diego) look on at July 10 Senate Labor, Public Employment and Retirement Committee hearing on AB 5. Photo courtesy California Senate Labor, Public Employment and Retirement Committee.

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