New Jersey and New York Consider Freelancing Laws Similar to California’s AB5

Advocacy organizations are mounting challenges to well-intentioned but overly broad legislation to assist gig-economy workers

Last month, we wrote about the potential effects of California’s AB5 on freelance writers living in that state. AB5 limits how much an individual can contribute to a single media outlet before being considered an employee under the law. The law, which will take effect in January 2020, has potentially damaging effects for freelancers producing a high volume of content in the media industry. If you felt free to skip over this development because you’re not in California, it might be time to pay closer attention.

Other states have been considering freelance or gig-economy labor laws similar to California’s AB5. And some of this legislation appears more strict than California’s, although it’s far from settled. In New York, a coalition of taxi drivers, nail salon workers, and various nonprofits are pushing for new laws—at least two bills are now in committee—while in New Jersey, politicians introduced a bill that would reclassify a wide swath of freelancers and small businesses as employees. New Jersey legislators say they will amend the bill “to ensure the ability of legitimate independent contractors to pursue their work at the same time they safeguard against misclassification.” But it’s not over until the new wording comes to light.

The American Society of Journalists and Authors continues to voice concern about these bills. Their latest statement says they recognize that misclassification is a serious problem in many—but not all—sectors of the labor market. “Trying to solve the problem by painting all independent workers with the same overly broad brush … ignores a robust community of freelance writers who choose independent career paths. Such legislation is both shortsighted and ultimately counterproductive. We urge the country’s lawmakers to respect the constitutional rights and personal preferences of freelancers when considering legislation that redefines the status of independent contractors.”

Similarly, while the National Writers Union supports AB5-like legislation to avoid the misclassification of workers, it respects the right of people to choose to be freelance. In testimony offered to the New York Senate, NWU’s Larry Goldbetter said of AB5, “We were looking then and we are looking now for an exemption … for creative professionals who produce work that is copyright protected. In fact, we believe that under both existing wage orders and the business-to-business exemption of the California new law, … we are exempt. We need greater clarity in the New York law. … We cannot allow legitimate independent creative professionals who create copyright-protected work to become collateral damage.”

Here are a few developments we’ve noted since we last reported on AB5:

• The transcription service Rev, a gig-economy company that has been accused of unfair labor practices, no longer hires contractors in California or Massachusetts due to regulations in those states. You can get a sense of the concerns about Rev at Boing Boing.
• Patch Media, a media organization that focuses on local news, sought stories about California from reporters who don’t live there to avoid running afoul of AB5.
• As expected, weekly columnists have been affected. A freelancer who writes for the alt-weekly SF Weekly tweeted that he won’t be writing for the paper as often.
• A go-to resource in the music business community believes AB5 will be a disaster for independent musicians. Read at his site.
• The California Trucking Association is fighting AB5.
• Presidential candidates are now establishing their positions on gig-economy laws. Elizabeth Warren wants to establish a national version of California’s AB5.

The Freelancers Union’s Sara Horowitz—who successfully spearheaded New York’s Freelance Isn’t Free Act to protect freelancers from non-paying clients—recently wrote, “Freelancers operate in fluid environments and, if we read the trends, this is the way most work is headed. The days when we sit at desks next to our colleagues and toil at discrete tasks for one employer are numbered. We need to figure out new ways of organizing that are better equipped for this kind of world. … Democratic presidential candidates are talking a lot about gig work, but they’re basing their opinions on outdated storylines and modes of operating.”

Meanwhile, both print and digital publications continue to fold or to lay off employees; the media industry has suffered increased layoffs and bankruptcies for more than a decade. Newspapers have been hit the hardest, losing nearly half of their newsroom staff over the last 15 years. While laws like AB5 are meant to classify and protect more workers as employees, it could, perversely, make matters worse.

Bottom line: Anyone who is even mildly pro-labor will likely be sympathetic to the current goals of gig-economy labor laws and see them as a step in the right direction. Rather than rejecting such laws wholesale, those in the media—particularly journalists—are looking for appropriate exemptions that don’t create loopholes that could be unfairly exploited.