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February 7 2020

How California Is Hurting Independent Contractors

by Beverly Hallberg

Ellie Bufkin joins the podcast this week to talk about how California’s Assembly Bill 5 (known as AB5) is straining the relationship between independent contractors and the companies that hire them. She’ll explain who is behind the AB5 push and whether or not exemptions for certain occupations will solve the problem.   Ellie Bufkin is a freelance writer. She serves as a senior contributor to The Federalist and former reporter for The Washington Examiner. Originally from northern Virginia, Ellie grew up in Baltimore, and worked in the wine industry as a journalist and sommel-yay, living in New York, Los Angeles, Chicago, Hawaii, and Washington, D.C. Ellie draws from her years in restaurants to write about current policies and legislation that affect workers in America. 

 
TRANSCRIPT

Beverly Hallberg:              Welcome to She Thinks, a podcast where you're allowed to think for yourself. I'm your host, Beverly Hallberg and on today's episode Ellie Bufkin joins us to talk about her career as a freelance writer and how California's Assembly Bill 5, known as AB5, is making it harder for independent contractors and the companies that hire them. She'll get into the details of who's behind the AB5 push and whether or not exemptions for certain occupations is the answer to the complications that have ensued.

  Before we bring her on, a little bit about Ellie. Ellie Bufkin is a freelance writer. She serves as a senior contributor to the Federalist and a former reporter for the Washington Examiner. Originally from Northern Virginia, Ellie grew up in Baltimore and worked in the wine industry as a journalist and sommelier living in New York, Los Angeles, Chicago, Hawaii and Washington DC. She draws her years in restaurants to write about current policies and legislation that affect workers and America. Ellie, a pleasure to have you on She Thinks   

Ellie Bufkin:                   Oh, thank you. It's a pleasure to be with you.   

Beverly:              So before we get into AB5, I thought it would be good to just start with, tell us a little bit about what you write about and just being a freelance writer. Why did you decide to take this career path of being an independent contractor?  

Yeah, absolutely. It's a really flexible way to be creative in a world where, especially where you're changing careers as I did. So as I began in the wine industry and restaurants, which is a pretty static position wanting to branch into a career that I didn't have experience with later in my life than a lot of people do, it was really nice to be able to have the flexibility to contribute to publications. One or two things at a time, kind of spread my wings, meet some other journalists in publications and be able to get my work seen and kind of get the ball rolling without actually having to find a brand new full time job.   

Some of the topics I write about, obviously you mentioned that I wrote about wine, but I've also kind of evolved into writing about things that affect me personally. As you mentioned, things that affect labor and I also read about pop culture, movies and TV, whatever opportunities that I get and things that I'm interested in.  

Beverly:              And so how did you end up starting to write for the Washington Examiner and also the Federalist? Was that a relationship that was hard to build since you did come from the wine industry or was there a natural overlap with that?  

Ellie:                    There was a little bit of a natural overlap with the Federalist in that I had been a fan of reading the Federalist for awhile and I'd been in touch with some of the editors they were interested in the fact that I worked in the restaurant industry because I had a slightly different insight than some people who had worked in politics and maybe didn't know as much about some of the stuff that was going on in New York and LA. Even in DC that were affecting workers in the restaurant industry as far as minimum wage increases and different labor laws. So it was a conversation that happened and then I was asked, "Would you be willing to write maybe six or 700 words about why this affects you personally?"  

So that was kind of how I got my foot into it and then people liked the piece that I wrote. People responded well and it sort of snowballed after that into much more contributions. So that was a very beneficial little how that happened. The Examiner happened just because of that. So after four years of contributing here and there for the Federalist whenever I was wanted or needed, I was able to sort of translate my experience working in restaurants and in a leadership position as well as my journalistic experience at that point to get into the newsroom at the Washington Examiner.  

Beverly:              Well, I always think it's helpful when you read pieces where people have experienced what it is that they're writing about. So it gives that personal anecdote and that helps immensely to have that.  

Ellie:                    Absolutely.  

Beverly:              With freelance writing, I know I interact with a lot of young people who are considering becoming a freelance writer, writing for a living. What tips would you have or what cautionary tales would you have for people who want to be an independent contractor in the freelance writing world?  

Ellie:                    I would say patience is the number one element that you really just have to have from the beginning. Young or old you can become a freelance writer, but it's going to take time. You can't just start throwing... No matter how talented you are on paper, how creative your words are, you can't just start throwing your pieces out and hoping that oh, I'm going to be the next big thing. Everyone's going to love my work. I'm going to be demanded. It takes a long, long time. Some longer than others and it takes hard work and the acknowledgement that sometimes you're going to sit down and write 1200 words that you think are beautiful and poetic that might never get published. They may only be seen by you and you will end up self-publishing and not getting any money for it.  

You're going to have to chase checks. It's not the same thing as getting a paycheck every week, but it's all worth it when you get the chance to be creative, when you get the chance to write exactly what you want to write how you want to write it, and get the chance to share your work in several different outlets. So it's not just one person or one publication that's editing your work and sharing your work, you get a chance to really shine in a lot of different places.  

So be patient and also understand you may not be able to just be a freelance writer off the bat. I still take odd jobs in restaurants. I work and do things and I know a lot of other popular freelance writers who do the same thing. It's a free life, but it is still hard work and you do still have to mind your P's and Q's and look after yourself. It's not something that you're ever going to get handed to you on a silver platter.  

Beverly:              Well, I know before I started my business I went out as a freelancer and you do. You take what comes in, then you figure out okay what is this area I really like and then hopefully you can get more work in that area but you end up working a lot of odd hours, which I'm sure you do as well. It's a lot of work, but I think like you were saying, it's very satisfying too because you get to do what you enjoy doing. I want to now move to an area that does impact independent contractors. This is a bill that was passed in California. This is known as AB5. It went into effect January 1st. This is about the gig economy. Can you give us some background about what this bill does?  

Ellie:                    So AB5 is a new bill that went into effect as of January 1st and was sort of the part two to a landmark decision that happened in 2018 called Dynamex versus the Superior Court of California which attempted to redefine an independent contractor in the state. The idea behind both Dynamex and AB5 ostensibly is to protect workers of all kinds. Instead of having anybody be an independent contractor, it essentially redefines everyone who does a job as being an employee and therefore would protect them as far as everybody else is concerned in the state. So you get paid medical leave, benefits, everything that is required of employers that are not employers of independent contractors.  

Now AB5 took it one step further, several steps further actually, and they implemented what is called the ABC Rules of defining independent contractors. So A is free from control and direction of the company performing work both practically and contractually and then it defines an employee as someone who performs work that is outside of the usual course of the company's business and is customarily engaged in an independently established trade.  

Basically, and this is kind of flowery language, but what it means is that anybody who once worked for themselves, plumbers, any kind of contractor, anyone who who just makes an invoice for somebody and doesn't actually have an LLC for themselves is now required to be employed in order to perform their duties. Which means that they would be privileged in the words of this bill to have medical leave, to have over time, to have all of these things that we think are supposed to be benefits to employees. But what it does is reclassifies freelance work in the fine print to say that for instance, freelance writers can only submit 35 pieces per publication per year without actually having to be hired by that publication. There's similar rules for photographers, similar rules for translators, similar rules for musicians who play at bars.  

Beverly:              Well Ellie, let me just jump in here. You mentioned these different occupations, people that are going to be impacted by this. Of course these types of laws have good intentions behind it, but often good intentions don't lead to good outcomes. What first of all, has it meant for so many in the freelance community and also is there always a problem when you have government officials and elected officials trying to make laws for an industry they often don't understand?  

Ellie:                    Absolutely it is and I think yes, there are a lot of people that supported AB5 who really thought that it was going to help Californians, that it was really going to provide benefits that people had been missing out on. You see a lot of people that are saying that women and immigrants are disproportionately affected by the gig economy, but what they don't understand and what they refuse to hear as there's been so much pushback since the law went into effect at the beginning of the year, is that it's taking away the freedom to work for millions of Californians who depend on having a stay at home schedule, a flexible part time schedule.  

It disproportionately affects stay at home moms. It disproportionately affects people who also are students and also people who have a second job not because they need money to live, but because they want to have extra money to raise for their kids, for college, for themselves, for whatever reason. It's their right and it's taking away the flexibility, the freedom to make choices when it comes to work. Having to have just one job may seem great on paper in the legislature, but it isn't what people want. People want that flexibility to not work for weeks at a time without having to tell their bosses. They don't want the paid leave. They have health insurance through their families. This isn't benefits that they're looking for. So you're talking about lots of people who enjoyed this flexibility without the benefits that are now being forced to turn away from that and it's definitely their perspective that these lawmakers just don't understand that lifestyle and refuse to.  

Beverly:              What do you say then to that individual? We see stories about this in different articles that are talking about AB5, it's always highlighting a person who, let's say had some type of health issue, had to leave work for eight months and loses their home because they weren't working, didn't have any protections and therefore couldn't cover the bills that they have. What about someone in that situation? What do you say is the answer for those people who aren't looking at this as an occupation where they want to have more options or this is a second job? But what about people where they're providing for a family and they, God forbid have something to happen to them health wise and they have no benefits even though they're working long hours for a company?  

Ellie:                    Yeah, I mean I think that every situation is imperfect. There's a lot of companies, there's a lot of industries that do have benefits, that do offer disability insurance and I think when you have a family and this is your only source of income, it's important to look towards that and plan for your own future. There's some outside things that you can personally buy and control that can prepare you for that type of hazard, that type of accident and trauma to your family. There are certainly some downsides.  

I know personally, one of the things that I struggle with is I have to buy my own insurance. So I parcel out the money because I know that I need it. I can't get it through my employer because I don't have one. So it's another challenge to people who want to work this independently and make their own money, but it's just one of those situations where you're going to have to at least a little bit fend for yourself. That's part of the freedom. Part of the freedom also includes great responsibility.  

Beverly:              This is the part that I have found fascinating about the blow back of AB5 is that it's not just independent contractors within California who are upset about this. This also impacts people who are independent contractors in the rest of the country, or maybe even in the world, that have to adhere to this. Correct?  

Ellie:                    That's absolutely correct. So if it's a company in California and you don't work in California, then you also are be held to the laws. So that means that they won't hire any independent contractors. For instance, Vox who wrote positively about AB5 when it was up for being signed by Governor Newsom, was praising it and then released just after it passed that they had to sever ties with several thousand freelance contractors from all over the country. People who had contributed to them on a number of levels because they just, they couldn't keep up with the laws. At that point, assembly woman Lorene Gonzalez who is behind this bill said, "Well they can just hire them." That was the end of her defense about it and they were like, "Yeah, we can hire about 12 people." There just isn't an answer, but nobody wants to address this extreme problem and the fact that all of these people are losing income.  

Beverly:              Now because there has been such pushback, there's been a suggestion to maybe add more exemptions in for certain occupations like writers for example. When lawmakers start going down this route of making those types of potential ways that they can improve this, what does that make you think and does that make you wonder if there's actually going to be any type of push to overhaul this bill altogether?  

Ellie:                    Absolutely. I mean there's been push since way before it became a law at the beginning of the year to have it repealed entirely. Now it did pass and it has been enacted in certain ways. There are several companies that have publicly stated that they simply won't adhere to it. Come get us, we're just not going to follow it. Uber and Postmates have been in and out of court since the bill hit the table about how this would adversely affect them.  

Now they're talking, there's going to be this sweeping exemption for Uber and Postmates potentially. This organization of freelance writers in California has also been in court fighting. Citing first amendment infringement, citing all kinds of other constitutional problems. So now there's a lot of different repeals, and exemptions, and changes to the law that are being addressed and at the point of some of these passing and all of these not being enforced, does the bill even matter?  

Once you gut the soul of it, it kind of seems like a full repeal might not even be necessary. It's sort of just an echo of what passed with Dynamex last year or two years ago. So yes. I mean there's lots of things that are up in the air with AB5 going on right now, however, there's another bill that's actually a federal bill that's entering the House, which is H.R.2474 which would essentially, it echoes AB5's ABC compliance and would apply to the entire country which would roll back the right to work in 27 states that currently have that.  

Beverly:              And I want to let our listeners know that IWF does have a policy focus on the gig economy that's coming out in late February and also we're hoping anybody who's been negatively affected by AB5 to email us at [email protected] That's [email protected] because Ellie, as you were saying, this federal push maybe one of the only ways to block it is for people to speak up. Do you think our lawmakers on Capitol Hill are hearing from people across the country?  

Ellie:                    Absolutely they are, and I know specifically they've heard from me, so I'm sure that there's lots of other people that are calling as well. If you spend any time on social media looking for a response to H.R.2474, it's overwhelmingly negative. Now currently the bill has 218 sponsors. So it's got a lot of strengths in Congress, but there has been a lot of amendment propositions that have been made mostly by conservative law makers as it is a mostly democratic sponsored bill. Today they're going to make arguments and then tomorrow I believe they're going to actually vote on it in the House. So while the nation is mostly focused on what's happening in the Senate today with the potential impeachment acquittal in the House, they're arguing one of the most detrimental labor laws that have ever been brought forth to Congress. So it's incredibly important that people get in touch with their local law makers, their congressional representatives, and tell them how this bill would negatively impact their lives and their children's lives.  

Beverly:              Well, Ellie, thank you so much. Not only for coming on the show, but also using your own experience as a freelancer to write about things that affect so many people across this country who are independent contractors. So thank you for your time today.  

Ellie:                    It's been my pleasure. Thank you very much Beverly.  

Beverly:              And thank you all for joining us today. Before you go, I did want to let you know of another great podcast you should subscribe to in addition to She Thinks. It's called Problematic Women and it's hosted by Kelsey Bolar and Lauren Evans, where they both sort through the news to bring stories and interviews that are of particular interest to conservative leaning or problematic women. That is women whose views and opinions are often excluded or mocked by those on the so called feminist left. Every Thursday hear them talk about everything from pop culture, to policy and politics by searching for Problematic Women wherever you get your podcasts. Last, if you enjoyed this episode of She Thinks do leave us a rating or a review on iTunes, it does help and we'd love it if you shared this episode so your friends know where they can find more She Thinks episodes. From all of us here at Independent Women's Forum, thanks for listening.





Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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