The United States’ gig economy has been undergoing a shift this year. Various state governments are intending to protect their constituents from exploitation with new gig worker laws, but the proposed laws are creating problems for full-time freelancers.
On November 7 and 14th, New Jersey followed California’s lead in introducing legislation tightening up independent contractor laws. At the center is a revised checklist, known as the ABC test. It follows innocent-until-proven-guilty logic, except that one is assumed to be an employee at first, which, many people are saying, is the wrong way to organize it. Basically, a worker is defined as an employee unless the worker can be proved to be:
- “Free from the control and direction of the hiring entity;”
- Performing work “outside the usual course of the hiring entity’s business;” (which is part of the problem for freelancers) AND
- “Customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”
Additionally, the California law only allows publishers to hire freelancers who are based in the state—including writers, photographers, illustrators, and other contract-based workers—for up to 35 pieces of content per year. And beyond those 35 content submissions, the law would require them to be treated as employees. The law applies to workers based in the state, no matter where the publisher is located.
While the intention of the law is to protect gig workers, instituting limits on the number of articles freelancers produce cuts back opportunities for regular columnists and online writers who produce large volumes of content, especially for websites, but don’t want to be bound by a commitment to the full scope of an employer relationship.
An article in publishing veteran Jane Friedman’s email newsletter, “The Hot Sheet,” last month quoted American Society of Journalists and Authors (ASJA) board member and past president Randy Dotinga, who said, “We are worried that in-state clients will outsource to writers in other states, when possible, to avoid having to comply with the law. And there’s a huge threat of blacklisting [of California writers] by out-of-state clients.”
The ASJA also made a public statement on Friday opposing related measures in New Jersey and New York, saying it
“opposes legislative efforts to restrict the ability of independent writers to work as they choose without governmental interference. The organization stands in solidarity with our members and with all freelancers facing threats to their livelihoods as a result of laws and legislation aimed at either prohibiting or restricting their work as independent entrepreneurs.
The American Society of Journalists and Authors, Inc., recognizes that misclassification of workers as independent contractors when they deserve treatment as employees is a serious problem in many-but certainly not all-sectors of the labor market. We in no way condone the exploitation of workers by their employers. Trying to solve the problem by painting all independent workers with the same overly broad brush, however, ignores a robust community of freelance writers who choose independent career paths. Such legislation is both short-sighted 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. Legislation that includes freelance writers in the general class of allegedly exploited workers is an attempt to solve a problem that does not exist and will cause immeasurable harm.”
This statement appears to have spurred action—at least in one state. That same afternoon, the New Jersey Department of Labor and Workforce followed the ASJA on Twitter, and, in the evening, the New Jersey senate said that they would revisit the bill. The amendment will apparently maintain the ABC test but modify the phrasing of the “B” and “C” parts. They emphasized that the status of freelance journalists will not change.
We’re monitoring this situation closely and will update you on it as it progresses.
Once the updates are finalized and made public, the ASJA will host a free teleconference for anyone who wants to get involved or learn their rights. In the meantime, read more about the issues here:
• Opinion by freelancer Gwen Moran
• San Francisco Chronicle contributor Kerry Jackson’s stance
• Preexisting benefits for freelancers, from founder of Freelancers Union, Sara Horowitz