United States Project

‘This could ruin us’: A class-action suit imperils California freelancers

March 15, 2019

Carrie Bell likes being her own boss. A full-time freelancer for nearly 18 years, she covers entertainment and travel for outlets like Yahoo and PopSugar. Despite the rollercoaster highs and lows of working independently, freelancing agrees with her. “I worked full-time. It wasn’t really my style. I work really well at 3am.”

But late last year, the Los Angeles–based writer got an ominous email from a longtime client. An HR representative was cutting her loose. An apologetic note from her editor at the publication followed.

“I was like, ‘Did I do something wrong?’” Bell recalls.

The answer relieved Bell’s worry, but presented another. It wasn’t her; Bell’s employers were worried about Dynamex.

Dynamex is shorthand for a class-action lawsuit in California about the employment status of delivery truck drivers. Last April, the state Supreme Court ruled unanimously that Dynamex Operations West, a package delivery company, had misclassified its drivers as independent contractors rather than employees. The ruling also covers exotic dancers, hairdressers, freelance reporters, and anyone else who works as an independent contractor (IC) in the Golden State. Heralded by labor groups as protecting the rights of vulnerable workers and confronting the abuses of the gig economy, Dynamex has also created widespread confusion about who’s exempt, who’s in trouble, and what the ruling will mean for freelancers. To say that it’s having an impact would be an understatement. People are freaking out.

ICYMI: Newspaper upgrades CEO’s housing stipend to $35K a month amid buyouts

Sign up for weekly emails from the United States Project

The ruling established an ABC test whose three parameters must be met for a worker to be independent under California wage orders that govern things such as minimum wage and overtime. Part A says that an IC must be “free from the control and direction of the hirer in connection with the performance of the work.” Part C requires the “worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.” But it’s part B that presents a problem for freelance journalists: someone is an independent contractor only if they perform work “outside the usual course of the hiring entity’s business.” In the archetypal example, a plumber fixing a restaurant toilet clearly qualifies. A freelancer journalist writing a column for a magazine? Not so much.

While many media companies and publications seem unaware or unfazed by the ruling, others are severing ties to California writers to ensure compliance. Bell’s client, New Jersey-based Northstar Travel Media, which produces travel industry trade journals, has stopped working with a number of California freelancers. (Disclosure: I’ve freelanced for Northstar over the past four years, and transitioned to being a part-time employee in January.) San Diego journalist Randy Dotinga lost a potential public broadcasting client that suddenly announced a no-freelance policy post Dynamex. They didn’t specify the cause, according to Dotinga, but the timing suggested they might be spooked.

Cecilia Hae-Jin Lee, an LA-based writer and photographer, hadn’t given the ruling much thought until one of her long-time editors emailed to say they couldn’t keep working with her. “I lost a regular client because of this,” she says. “They just blanket decided not to hire any California freelancers.”

I reached out to Northstar, Thomson Reuters, and the Editorial Freelancers Association to ask about Dynamex, but all three declined to comment for this piece. The Los Angeles Times, Freelancers Union, and News Guild didn’t reply at all.

California isn’t the only state with an ABC test. The ruling was based on a Massachusetts statute that sets roughly the same parameters, but when I tried to find a Massachusetts writer who was aware of the law—let alone affected by it—I came up empty. Boston University School of Law Professor and employment law expert Michael Harper attributes that to alarmism in response to the new standard. Among “high-skill” industries, he says, “it would have to be used by the workers against employers. If it’s a relationship that people are happy with. . . they’re not going to bring a case.”

Dotinga is alarmed. A former newspaper reporter who has freelanced full time for the past 20 years and previously served as the president of the American Society of Journalists and Authors, Dotinga has been working with a coalition of 16 national non-profit groups that represent professional creatives to draft a letter to legislators explaining the impact of Dynamex. “For all of us who are freelancers, this could ruin us,” Dotinga says. “We could be unable to find work. It’s potentially really devastating.”

ICYMI: Why the left can’t stand The New York Times

Exemptions to the wage orders—and therefore Dynamex—already exist, granted to some “professionals” such as doctors and architects and “creatives” such as artists. Writers fall into a sort of gray zone—not explicitly exempt and not explicitly subject. Brigid O’Farrell, with the Northern California chapter of the National Writers Union, says the organization supports the Dynamex ruling, but is also concerned about its effect on freelance creatives who satisfy all but Part B of the new test. Along with Dotinga, the NWU is working on specific language that would protect independent writers who are truly independent.

California Assemblywoman Lorena Gonzalez, who’s sponsoring a bill that would codify Dynamex as law, has met with the group. Gonzalez says she’s concerned that workers are covered with protections like health insurance, disability, and worker’s compensation; that employers aren’t shifting those costs to the state; and that contractors have the power to dictate the terms of their work. If freelancers satisfy those stipulations, then Gonzalez gives it a green light. “In those situations they’re acting like a tiny little business, and I think that’s how independent contractors are supposed to work,” she says. When it comes to a blanket exemption, though, she’s less convinced, pointing to the potential for freelancers to break a union or for companies to hire permalancers in place of employees.

The most coveted freelance gigs—recurring columns or features that journalists can count on month after month—seem especially vulnerable. Gonzalez says she’s less concerned about journalistic piece-work. However, when a magazine uses a freelancer to write weekly movie reviews or a photographer shoots exclusively for a single paper, she asks, “Doesn’t that start to feel like they’re actually misclassified?”

“Freelancing gets a bad rap,” Dotinga says. “The fact is a lot of us do really well, and we do have a lot of job security. I’m sure if I had been a newspaper reporter for the last 20 years, I would have been laid off a few times. For me, being a freelancer is the way I’ve been able to continue being a journalist.”

In the wake of massive media layoffs earlier this year, the same thing is true for many former newsroom staffers, though the ability to outsource content—and the accompanying payroll taxes—could also be a factor in declining editorial jobs.

Harper, meanwhile, wants to apply his own ABC test to me and this assignment.

“When you say you’re writing a story, does that mean they’re paying you?” he asks.

Yes, I tell him. I pitched the story, agreed upon a rate, and set a deadline, made a one-time deal for this article without restrictions on what I can write for anybody else. CJR could kill the story, or I could pull it myself with no repercussions beyond a bridge burnt and a missing paycheck.

Satisfied, Harper says that I sound like an independent contractor. “But,” he sighs, “I understand how lawyers could make them nervous.”

ICYMI: The FBI’s secret investigation of a journalist

Sarah Feldberg is a freelance writer and editor based in the Bay Area. Her work has appeared in National Geographic, The Atlantic, Afar and ESPN. Follow her on Twitter @sarahfeldberg.