For freelance writers hoping the gig economy laws have gone away as the nation tries to regain its financial footing, it’s time to get re-educated and spring into action.
AB5, the California law that went into effect this year, requires companies to handle independent contractors as employees – with all of the red tape and paperwork and benefits that go with it. The law was meant to protect drivers at rideshare companies such as Uber and Lyft, which is great. What’s not-so-great: Scores of freelance professionals – writers, actors, graphic designers, musicians, and photographers – got grouped into this bill.
The initial consequences were dreadful. Under this “gig economy” bill, sponsored by Assemblywoman Lorena Gonzalez, people who made a living as full-time freelancers had their careers threatened. Under AB5, an independent contractor retained their status if they passed all parts of the “ABC Test,” which Jean Murray detailed in an article for The Balance:
- 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.
- The worker performs work that is outside the usual course of the hiring entity’s business.
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
Number two should rattle every freelance writer to their core. If you write for a magazine, newspaper, or website, your client could get fined or penalized if they don’t treat you as an employee.
As Debbie Abrams Kaplan with Fight for Freelancers – an organization fighting similar legislation in several states – told me, most employers don’t want one person going through an HR gauntlet if they won’t clock 40 hours a week. Consequently, some contractors, says Kim Kavin, also of Fight for Freelancers, are “putting a blanket statement out there like they’re just not going to work with people from California,” period, even though two bills were introduced by Gonzalez to improve AB5, one of which, AB2257, spares freelance writers. New Jersey lawmakers tried to pass a similar bill in late 2019 before freelance writers helped derail the rushed legislation; New York was considering legislation before the coronavirus pandemic paused Governor Andrew Cuomo’s vow to examine the bill’s impact. Massachusetts, Illinois, and Washington also introduced similar legislation. If Joe Biden gets elected in November, Kavin believes such legislation will go national.
“What’s starting to happen now is these legislatures have gone remote, and the big labor movement, the AFL-CIO, have decided, ‘Well, let’s do it now. Let’s get back to the plan,’” Kavin says. The AFL-CIO reps Fight for Freelance has dealt with have been dismissive, says Kaplan. “They don’t understand how we work, and they don’t care,” she explains.
In a January editorial for the Asbury Park Press, Charles Wowkanech, president of the New Jersey state AFL-CIO, laid out his nuance-free objections to the limits of the independent contractor. Because of “a simple classification change,” they get none of “the benefits and protections” that a traditional employee receives. And these two people do the exact same job!
“Furthermore,” he added, “the company that intentionally misclassifies these workers as independent contractors no longer has to pay any of the cost of these pro-worker programs, turning those labor costs into more profit at the expense of its workers.”
That said, there is hope. “We found that a lot of the problem is education,” Kaplan says.
Your story as a freelancer can be pitched to any number of local, state, and regional outlets. That narrative – you’re not an exploited worker but someone who has found empowerment and stability in freelancing, which gives companies the ability to be more productive and economical – can be repackaged to convince skeptical legislators. Last November, I spoke to a staffer for New York State Senator Robert Jackson, who sponsored one of the gig economy bills. He was receptive when I broached my concerns in human terms: I can stay at home to take better care of my daughter; I make a good living doing work I love; my schedule allows my wife to work a job she loves. My objections to the bill seemed to genuinely surprise him.
The move to independent contracting, Kavin says, predates the gig economy. It has become essential as layoffs and furloughs in media accumulate post-pandemic, and some freelancers have found stability. Kaplan is on pace for a record year; Kavin anticipates making six figures. Jen Singer, another Jersey-based member of Fight for Freelancers, contracted COVID-19 and accommodated clients around her hospital stay. (When she battled cancer, she wrote a book on the oncology floor.) Since the pandemic forced me to spend half of my days attending tea parties and making PB&Js, I have invoiced more than $10,000 in three months while landing pieces at four new outlets. I doubt I could make that money if I worked full time at any of the news organizations in Ithaca, New York.
One of our great skill as freelance writers is our ability convince strangers of the power of our idea. That skill has to be funneled toward an assignment nobody wanted. But it’s one we have to complete.
And we can.
“This is an independent contractor issue,” Kavin says. “There are tens of millions of us in this country, but the writers are in the position to make the noise – and the noise is what gets their attention.”
Visit fightforfreelancers.com or fightforfreelancersusa.com to learn more about this battle and information you can use.
—Ithaca-based Pete Croatto is a veteran freelance writer who has written for The New York Times, The Christian Science Monitor, Publishers Weekly, Columbia Journalism Review, and many other publications. He is also working on his first book. Twitter: @PeteCroatto