Column: California freelancers are losing work, but they’re wrong to blame the gig economy law

Freelance writers in California who have been seeing their publishing opportunities sharply cut back or even eliminated by publishers are blaming the state’s new gig economy law, which goes into effect on New Year’s Day.

No one can deny these workers are being put through the wringer. For many, freelance assignments are their principal source of income.

But they’re blaming the wrong target. The source of their troubles isn’t the gig economy law, known as AB 5, which says that a firm that publishes more than 35 submissions from a single writer during the year must treat that writer as an employee rather than as an independent contractor.

The right place to lay blame is with the employers, some of which are citing AB 5 as an excuse to do what comes naturally — underpay their workers and avoid their responsibilities as employers to provide them with such benefits as unemployment and workers’ compensation coverage, sick days and family leave, as well as the opportunity for union organizing.

Take Vox Media, which announced Monday that it was cutting off more than 200 California writers who wrote “thousands of blog posts” in 2019 for its SB Nation sports website. The action, Vox said, is “necessary in light of California’s new independent contractor law, which ... restricts contractors from producing more than 35 written content ‘submissions’ per year.”

Vox’s statement didn’t happen to mention a couple of federal class-action cases that accuse the company of systematically shortchanging writers and editors by classifying them as “contractors” rather than “employees” — exactly the kind of behavior that AB 5 was designed to eradicate. Vox has denied the assertions. We’ve asked the company for further comment but haven’t heard back.

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Associations of freelance writers and news photographers sued the state on Tuesday to block the law as it applies to those workers. Before delving more deeply into the lawsuit and the Vox situation, let’s take a look at what AB 5 actually does — or, perhaps more pertinently, what it doesn’t do. That’s important, because its provisions have been widely misrepresented, including by employers who cited it.

AB 5 was an outgrowth of the California Supreme Court’s so-called Dynamex decision of 2018, which tightened the rules for when a worker must be considered a company’s employee rather than an independent contractor. The law expanded the court ruling’s reach beyond wage rules to other state labor rules.

• AB 5 does not limit freelance writers to 35 submissions per client per year.

• AB 5 does not require that writers who publish more than 35 submissions be given full-time jobs by their publishers.

• AB 5 does not prohibit bringing on freelancers as part-time employees and allowing them to continue making their own hours.

All those things may happen to freelance writers in California, but that’s the result of voluntary decisions by their publishers, quite possibly because they don’t want to pay the writers more by complying with minimum-wage laws and overtime rules.

The sponsor of AB 5, Assemblywoman Lorena Gonzalez (D-San Diego), has explained that under the Dynamex ruling, freelance writers would have to be designated employees if they wrote even one published piece. In her view, the 35-piece standard is actually an exemption that gives writers a bit of breathing room before their publishers have to start paying them employee benefits.

Gonzalez has indicated that she’s open to adjusting the exemption when the Legislature returns to Sacramento in January, but not to a complete exemption for writers and photographers.

The prime targets of AB 5 are Uber, Lyft, Doordash and other users of freelance drivers and delivery personnel, which have based their business models on avoiding the payment of workplace benefits and sticking the workers with their own expenses, including gas, insurance and maintenance. Those companies have mounted a ballot-box challenge to the law.

(After the Dynamex ruling, The Times transitioned about 30 freelancers to full-time staff positions. The recently ratified union contract at The Times places limits on the further use of freelancers, chiefly to discourage its turning to non-union labor at the expense of union employees.)

The implicit justification for publishers using freelancers rather than employees to provide their content is that they operate on a shoestring and can’t afford to pay up for articles, editing and photography.

That brings us back to Vox Media. Its announcement that SB Nation is cutting off its 200 California freelancers describes the decision as “bittersweet” and invites the freelancers to apply for a handful of full- and part-time positions created to take up the slack.

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The privately backed company doesn’t necessarily fit the definition of a shoestring operation. It operates 20 information websites, including the news site Vox, the tech site Recode and the food site Eater. In September it merged with the publisher of New York Magazine, creating what it called “the leading independent modern media company.”

Vox Media has been well-financed, with its most recent infusion of capital, a $200-million investment by NBCUniversal, arriving in 2015. That investment raised the firm’s valuation to more than $1 billion, according to its own Recode site.

In 2017, lawsuits filed by editors at SB Nation described a business model that involved working editors and writers unrelentingly for low pay. Cheryl Bradley, who had signed on in 2013 to help run SB Nation’s site devoted to the Colorado Avalanche team of the National Hockey League, asserted that she regularly published five or six articles a week while also managing its Facebook and Twitter accounts and live-tweeting during games. She regularly worked 30 to 40 hours per week, and sometimes 50 hours.

For this, she says, she was paid $125 a month.

Bradley’s lawsuit has been consolidated in federal court in Washington with one filed by other freelancers asserting similar claims. Vox Media denied the substantive allegations, but federal Judge Rosemary M. Collyer turned down its bid to have the lawsuits thrown out of court and has certified a class of more than 100 current and former SB Nation “site managers and managing editors,” elevated titles for people treated as independent contractors rather than employees.

In the lawsuit filed Tuesday in federal court in Los Angeles, the freelance writers and photographers organizations are represented by the Pacific Legal Foundation. As my colleague Suhauna Hussain reported Tuesday, the foundation, which was founded in 1973, has “a history of defending employer interests, among other libertarian causes.” Its initial backing came from the Pittsburgh billionaire Richard Mellon Scaife, one of the most rabid right-wingers of his time.

Since then it’s been associated with campaigns challenging anti-smoking laws and environmental regulations.

Randy Dotinga, a California freelance writer who is a board member and former president of the American Society of Journalists and Authors, said the organization reached out to several groups in search of legal representation and chose the foundation because it “has a record of 1st Amendment advocacy.”

The foundation’s disdain for government regulations, as it happens, oozes out from between the lines of the lawsuit. It asserts that for freelancers “AB 5 adds costs their client-turned-employer will have to pay, such as unemployment taxes, workers’ compensation taxes, state disability insurance, paid family leave and sick leave.”

The lawsuit implies that these are bad things. But are they? It’s a safe bet that a laid-off writer will appreciate having unemployment coverage; an injured photographer, workers’ compensation; a disabled editor, disability insurance; and anyone starting a family or falling ill, family and sick leave.

If California’s freelance writers and photographers are seeking an explanation for why they’re losing assignments, it’s not because AB 5 puts limits on what they can do; it’s because their own employers are looking for a world where they can avoid providing these basic benefits to their content providers and keep the profits from the labor for themselves. And isn’t that what AB 5 is all about?