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January 19 2020

California’s AB5 Triggers Outcry From Independent Contractors

featuring Patrice Lee Onwuka

California’s new AB5 law is triggering outcry from independent contractors across the state and around the country. Freelance writers and journalists, specifically, face new caps on the number of submissions they can send to an employer each month for publication. Employers like Vox Media, are responding to AB5 by laying off freelance writers entirely. These workers want flexible work arrangements not the traditional employee arrangement that the state wants to force them into. We speak with Jennifer Van Laar, one writer who moved out of California to North Carolina because of AB5 about her experience. 

TRANSCRIPT

Beverly Hallberg:   
     Hey, everyone. It's Beverly Hallberg. Welcome to a special pop up episode of She Thinks, your favorite podcast from the Independent Women's Forum where we talk with women and sometimes men about the policy issues that impact you and the people you care about most. Enjoy.

Patrice Onwuka:             Hi, everyone. I'm Patrice Onwuka, Senior Policy Analyst at the Independent Women's Forum. Welcome to a special pop up episode of She Thinks, your favorite podcast from the Independent Women's Forum where we talk with women and occasionally men about the policy issues that impact you and the people you care most about. Joining us today is Jennifer Van Laar. Currently she's Deputy Managing Editor of RedState.com, and she wrote this fascinating piece entitled Casualty of AB5: I'm Leaving California to Live in Exile in North Carolina. AB5 is a new law in California that will end up reclassifying thousands of workers as employees of companies that they work for rather than independent contractors. Now this is despite the fact that people enjoy being independent contractors or their own bosses. Today we're going to be talking about the impacts on AB5 on a specific group, freelance writers and journalists. Jennifer, welcome to the program.

Jennifer Van Laar:           Thank you.

Patrice:             Terrific. Now tell us about what you do. Where do you write and what do you write about?

Jennifer:           For the bulk of my writing, I write at RedState where I'm Deputy Managing Editor. I also do some ghostwriting for different policy groups within California and political candidates.

Patrice:             Gotcha. I'm sure that puts a target on your back, but how long have you been a freelance writer?

Jennifer:           Since 2012 I've been a freelance writer. I moved back to my home state of California, to my hometown actually, when my dad was sick. He had had a stroke and was disabled, needed help, so I moved back. I was a court reporter in North Carolina, but due to other government regulations in California, I could not be a court reporter here. I changed careers and started at the bottom at age 40 in 2012 and worked my way up to where I am now.

Patrice:             Wow. What do you think is the biggest benefit of being a freelance writer versus that reporter that you used to be?

Jennifer:           The flexibility is completely the biggest benefit to it because I could not write when I didn't want to and just be able to do things with my son who has a learning disability. He's a junior in high school right now. He was in elementary school when we moved back here and I needed that ability to be home with him in the afternoon, to be able to go to IEP meetings, to be able to go to the school for things, and also like I mentioned, my dad was disabled and I needed to be able to go hang out with him whenever he needed extra care and go to the doctor with him. It was never on a schedule.

Patrice:             Well, you're speaking to many women, I think, who are caregivers, both of their children but also of their parents. That flexibility is definitely a value of the workplace that I hear from a lot of women being their number one concern. Now let's switch to AB5. Briefly, as I explained in the introduction, this bill would reclassify independent contractors, many of them, as employees of the companies they work for. It's based on kind of a legal case. I won't go into that. We have some resources on our website that does explain it, but in short it would have an unintended consequence of really forcing a lot of companies to turn people that they employ through contract work into full time employees, which would raise their costs, but it also has impacts on those independent contractors who actually want to be independent contractors. Jennifer, tell us, how did you first hear about AB5?

Jennifer:           I heard about AB5 in the spring of last year because I write about politics in California so it'd been on my radar. Everything I heard about it was Uber and Lyft, Uber and Lyft. Having worked in the court reporting industry before as a freelancer there too, they were talking about the Dynamex decision, which you referenced. I just didn't think it would impact me at all because it didn't, on the surface, seem like it would be anything that would affect a freelance writer.

Patrice:             But unfortunately it does. As you rightly said, the focus has been on the gig economy, like the Ubers and the Lyfts, those big tech platforms that tend to employ contract workers who some people consider as independent small business owners, and would really force them to make them employees, allowing them to get access to benefits, traditional employee benefits, and over time pay different types of compensation mandates that the state requires. It's interesting that it fell on your radar as an independent ... as a writer and as a journalist. I'm guessing it started to pick up steam in different circles that you move in. Do you think this is a conservative versus liberal issue or is this an issue that spans the political spectrum?

Jennifer:           As it stands now, it spans the political spectrum. When it started out, Lorena Gonzalez was so good at characterizing it as these Uber and Lyft drivers and some of these other gig economy people are being taken advantage of by these big corporations that make all this money. Then these people don't get minimum wage, they don't even ... If they get sick, they don't get paid, blah, blah, blah. She was very good at couching it in those terms, but now that a lot of people in Hollywood have been impacted too, whether it's musicians, photographers, videographers, writers, then they're starting to see just how insidious this bill is, because the onus is on us as a freelancer and the company to prove that we're not employees. The assumption is automatically that you are an employee unless you can fit into one of these exemptions. A lot of companies don't want to take that risk of Lorena then deciding, "No, you did the wrong thing and we're going to fine you $20,000."

Patrice:             Oh, that's scary. I mean, I think we just saw a headline that Vox Media, which is a major media outlet, they have laid off 200 of their freelance writers because of this. They are saying that they're hiring maybe 20 full time employees and part time employees as writers, but there's no guarantee any of the 200 who were laid off would get those jobs. What happens to all of those freelance writers? Now you mentioned the bill's sponsor. She says that there is an outlet for you writers or journalists if you want to be able to continue to be an independent contractor. She said just form a corporation. Jennifer, why don't you just form a corporation?

Jennifer:           Well, she also said, "Well, you can still be a sole proprietor and do this," but she then posts on Twitter, and I say it's a 10 point list, but I honestly have not counted them, "Oh, if you want to be classified as a "real business" then you just have to satisfy all these requirements." They're subjective. Some of them are objective requirements, but they could be interpreted different ways. There's a couple reasons why just incorporating doesn't work for me and for a lot of other people. First, in California, just to have an LLC, it's minimum $800 tax. Then you pretty much have to have an attorney or an accountant that you've retained every year to make sure that you're not running afoul of one of the hundreds of other regulations in California. You have to buy a business license in your town. Right from your couch, you have to go buy a business license.

Jennifer:           She also ... One of the requirements though of being a, quote, real business, in her eyes is that you have to write for multiple outlets. Well, what if I don't want to? Why do I have to write for numerous outlets or numerous clients to be a legitimate business? The other thing, since I do write about politics and I do antagonize politicians on social media and in the articles I write, I don't want them to have the ability to decide they're going to target me, like liberals have been known to do, and start auditing me or start going after me to hassle me using the resources at their disposal, meaning the government.

Patrice:             Jennifer, you laid out three really compelling reasons and concerns with AB5, particularly for freelance writers, one being the increased cost of just starting a business, an LLC or a corporation, if you wanted to do that. Then there's the red tape and the hoops that you have to jump through. Third, there's the potential for political backlash because of the types of writing that you do. Let's elevate this a little bit broader to what this means for journalism. I mean, certainly we've seen how the internet has proliferated the number of opportunities that writers have to amplify their voice and cover lots of topics, but what happens if something like AB5 spreads to other states?

Jennifer:           In my mind it has a chilling effect on the freedom of the press and First Amendment rights because you're only going to have a limited number of places where you can write these things or get your story out. Say in politics we're limited to The Hill and Politico and maybe a couple of other outlets to get stories out and they only have W2 writers. Well, that's going to have this whole structure where you're going to basically be told what you can and can't write on. Anyone who says that that doesn't happen is lying. You're not going to have investigative journalism and the whole new media, Breitbart, everything that he started, that's going to be gone, which I don't think is necessarily an unintended consequence of this kind of bill.

Jennifer:           In my case, I'm the writer who broke the Katie Hill story this year, which led to her resignation, and that would have never come out if AB5 [inaudible 00:10:46]. I say that not as anything personal on that politician, but I think a job of the media is to hold our leaders accountable. If we don't have the ability to use our voice to do that, our whole country's going to be in a bad place.

Patrice:             That's a great point you talked about there, Jennifer, the fact that we need a diversity of voices when it comes to journalism and reporting, because a lot of these major outlets for one reason or another will choose what they cover and how they cover different types of news. That leaves a lot of Americans in the dark on issues of local and national significance. We need independent journalism that's not just based on employees of a particular media company, but we need the voices that are in the wilderness crying out against injustices or bringing accountability just as we need the bigger national stories from the big national outlets. Thank you for shedding some on what the future could look like because of AB5. We'll wrap up with this question. Jennifer, do you think AB5 is going to come to other states or do you think this can be defeated? If defeated, how can it be defeated? What can we do?

Jennifer:           Forms of it are already being introduced in New Jersey and New York that I know of. There's a bill in Congress that was amended in December, and I'm still getting all the details on that, to add language similar to AB5 on a national level. It's definitely coming to a state near you. I hope that AB5 can be repealed. I'm working with a coalition of liberal and conservative and everything in between here in California to work on getting that repealed and seeing what we could do there. I wish I had all of the answers for it, but all I'm going to do is every day work to get this repealed so that people can choose when and where and how they exchange their labor for money.

Patrice:             Jennifer, we appreciate your efforts. At the Independent Women's Forum, we're keeping an eye on this issue. We actually are soliciting stories from other freelance writers or independent contractors in HR and every and any other industry who's been hurt by this. We want to see those stories. We're going to be amplifying them, sharing them, so that hopefully that helps the efforts that you're doing, Jennifer, but also other efforts to push back on AB5 and other legislation popping up in different states. Jennifer, thank you for joining us today.

Jennifer:           Thank you for having me.

Patrice:             Terrific. Well, we hope that you, the listener, enjoyed this episode of She Thinks, and the podcast in general. Now if you enjoy us, we'd love it if you would take a moment to leave us a rating or review on iTunes. This helps ensure that our message reaches as many people as possible. Please share this episode. Let your friends know that you can find more She Thinks episodes on their favorite podcast app. From all of us here at the Independent Women's Forum, thank you for listening.


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