California’s new 35-story limit for freelancers

California Assembly Bill 5, in its original language, seemed as though it could end freelance journalism in the state. The bill, which Gov. Gavin Newsom signed into law September 18, codifies and expands on a 2018 California Supreme Court decision that made it harder for companies to classify workers as freelancers rather than employees. As employees, workers are covered by state laws on the minimum wage, worker’s compensation coverage, workplace discrimination and other protections. As freelancers, they are not.

The bill grabbed nationwide headlines because it appears to define the workers at Uber, Lyft, and other “gig economy” tech companies as employees, covered by a range of workplace protections. When it became clear the bill would pass, Uber, Lyft, and Doordash pledged $90 million toward qualifying a ballot measure that would let them continue to classify their drivers as independent contractors.

The core of the Dynamex decision, and of the new law, is a three-pronged “ABC test,” which is used to determine who is and isn’t a freelancer. The “B” prong, which presents the biggest issue for freelance journalism, states that employers can only contract out work that is “outside the usual course of the hiring entity’s business.” A company in the business of journalism, then, could not hire freelancers to do journalism. 

As CJR reported in March, some publishers responded to the Dynamex ruling by cutting ties with freelancers based in California. The passage of Assembly Bill 5 offers some relief: freelance writers, editors, photographers and editorial cartoonists were given a partial carve-out, allowing publishers to hire them for up to 35 separate “content submissions” in a given year. (The law exempts more than 20 professions, including doctor, lawyer, manicurist, travel agent and commercial fisherman. Graphic designers have a full exemption, which means California judges could find themselves ruling on how much Photoshop work it takes to distinguish photography from graphic design.)

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It’s not hard to find freelancers who say they will run into that limit. “I’ve worked for sites such as AOL that are mostly run with senior editors doing longer stories and freelancers doing the daily news hits, and in my experience it’s been really easy to go over 35 bylines in less than a month with those,” Zac Estrada, a writer and editor in Los Angeles who covers automotive and technology news for a variety of publications, says. “Earlier this year, I was working for a site doing daily news contributions, and they wanted at least 50 per month.”

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California’s new freelancing rules have prompted one site, for which Estrada works as an editor, to re-examine the way it distributes work. He hasn’t had any work from that site this month. “I’m glad the state of California is looking out for workplace issues and benefit, but I don’t see a way this bill helps me,” he says. “A lot of people I know love freelancing and wouldn’t take a full-time job even if it offered them more money.”

Nathan Cambridge, a freelance sportswriter in Los Angeles, covers football games and other high school and community college sporting events for local newspapers in Burbank, Glendale, and La Cañada Flintridge. All three papers are owned by the Los Angeles Times; it’s not clear from the text of the law whether the three will be treated as individual employers, or as one. If they’re considered separate, then Cambridge has exceeded 35 stories for one client twice in the past five years. If they’re considered a single employer, then he exceeds 35 stories every year (with an average of 59 per year, and a high of 103 in 2013).

“In an ideal world, the company would recognize the value of my content and think, ‘Rather than not being able to use this person anymore, I’ll give them a job,’ but that’s not the world we’re in with newspapers,” Cambridge says. “What’s going to happen is, I’m going to hit 35 and they’re going to stop giving me assignments.”

Community newspapers and local weeklies are going to feel the pinch of the 35-byline limit, Steve Falk, the CEO of Sonoma Media Investments, says. The company owns the daily Press Democrat in Santa Rosa and two community weeklies in Sonoma County, along with a weekly business journal, two magazines, a Spanish language newspaper, and a cannabis news website. At the weeklies, Falk says, it’s common for freelancers to write weekly columns on food, wine, or local events.

“They write 52 weeks a year, and that becomes a problem now,” he says. “We will have to pick the 35 most important weeks for them to write.” The number, he adds, “just seems so arbitrary.”

Why a limit of 35 stories? The number is the result of negotiations between lawmakers and interest groups, including journalists and journalists’ unions, according to Steve Smith, communications director for the California Labor Federation. The union coalition was one of Assembly Bill 5’s chief supporters, and worked on it with its author, San Diego Democrat Lorena Gonzalez.

“We had a lot of discussions with journalists and with unions that represent journalists,” Smith says. “You needed to thread the needle. If you had a blanket exemption, what would prevent any newspaper or magazine or online publication from saying, ‘I’m going to get rid of all my employees and make everyone a freelancer’?”

Catherine Fisk, a professor of labor law at the University of California, Berkeley, says the 35-byline rule is an attempt by the legislature “to distinguish between people who are really, effectively, a staff writer and people who are truly freelancers.” She calls the threshold a “bright-line rule” and likens it to a speed limit. “There might be reasons why 65 isn’t the best speed limit for the road you’re on, but don’t try arguing with the cop about it,” she says.

Assembly Bill 5 could have been worse for newspapers and other publishers. The first drafts of the bill had no partial exemptions for freelancers who write fewer than 35 times per year. And a separate bill gave the newspaper industry an extra year to classify its freelance delivery carriers as employees. Even under the pre-Dynamex regime, newspapers faced numerous lawsuits from carriers seeking employee status and back wages.

Under the bill, Uber and Lyft will be exposed to lawsuits from local and state prosecutors. Publishers aren’t likely to face the same enforcement pressure. But the risk is there, and California prosecutors are sometimes of the activist type.

If publishers are sued, freelancers would be the intended beneficiaries. But it doesn’t feel that way to Cambridge, who sees his freelance work covering high school sports as something of a community service.

“High school sports are there for the community,” he says. “That’s half the reason I do it, and it’s half the reason I feel threatened by this. It’s not just money and it’s not just a job that’s being threatened, it’s the community feeling threatened by this. It feels like the state of California has a beef with Uber and we’re caught in the crossfire.”

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Tony Biasotti is a freelance writer in Ventura, California. Find him on Twitter @tonybiasotti.