Is California Stealing My Right to Gig?
The beginning of 2020 is presenting me with an odd and confusing mix of challenges to wade through and somehow overcome. As if figuring out the Medicare minefield of options wasn’t enough (thank you to my friend Paul who connected me with someone more knowledgeable than me), I’ve also been thrust into the murky debate over AB5. As I understand it, it was meant to alleviate the abuse of contractors who should be employees by companies like Uber and Lyft. So why have they done their best to cut the legs off anyone who operates legitimately as an independent contractor in California?
Arbitrary rules like 35 submissions or less for a single company, or the ABC rule which isn’t really new, but re-worded to make it more inflexible and confusing fill the law, making even those who created it shake their heads in confusion.
The bill’s author, Lorena Gonzalez has an interesting history which might, in part explain her lack of understanding or consideration for those of us who are members of the growing gig economy. According to Wikipedia, her early career included:
A community organizer and activist, Gonzalez was elected in 2008 as CEO and Secretary-Treasurer of the San Diego and Imperial Counties Labor Council, AFL-CIO.
Belt and Suspenders: Wasting Taxpayers’ Money
The two cases quoted extensively throughout AB5 include Dynamex Operations West, Inc. v. 
Superior Court of Los Angeles (2018) 4 Cal. 5th 903, and S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal. 3d 341. The first case involved unfair classification of delivery drivers, and the other, cucumber pickers. As I understand it, the findings in both cases should have been sufficient to protect similar workers like Uber and Lyft drivers.
What baffles me and thousands of others is why Ms. Gonzalez felt the need to make a law out of practices already being enforced, and more, why broaden it to include workers who:
- Make well above minimum wage
- Are typically doing some kind of skilled and even highly educated tasks
- Often bill by gig (task) rather than hourly
- Pay plenty into the State and Federal tax systems
- Don’t need a watchdog
- Are often in marginalized groups such as women, disabled people, and seniors who find it difficult or impossible to find employment as an employee, but support themselves well as a freelancer or independent contractor.
Writers Step in to Point Out What Should Be Obvious
After failing to halt the launching of a law that everyone but the lawmakers seemed to know would do more harm than good, it’s not surprising to see the media take up the gauntlet, especially as they’re one of the worst represented by this bill.
The Washington Post summed it up well:
The lawmakers seemed genuinely stunned about how many jobs operate under the independent contractor model in modern-day America. They really seemed to have no clue.
The author went on to say:
Those of us who choose to be independent contractors are not a small group of people. The Labor Department, as of 2018, said 1 in 10 Americans was working as an independent contractor. And while union membership hit an all-time low in the United States in 2018, Intuit and Emergent Research say the number of Americans working in the gig economy will grow from 3.9 million in 2016 to 9.2 million by 2021. (italics and emphasis added)
Of course, with current legislation in California, and pending in New York and at the Federal level, passage would change that estimate, and ultimately damage the economy as it’s unlikely those numbers could or would be absorbed by employers. (italics added)
The people raising their voices against this legislation include working mothers who need flexible schedules to care for kids. They are people who have a spouse or child with a chronic illness, and who need to be able to work between doctor’s appointments. They are people with disabilities who need to work whenever they feel up to it. They are people in professions that traditionally welcome women, jobs like marketing, publishing, public relations, teaching and communications, but where full-time opportunities are not what they used to be. They are people in their 40s, 50s and 60s who can thrive as independent contractors, but who, because of ageism, are likely to be last on the list as a full-time hire. (italics added)
Do You Burn Down the House to Eradicate Ants?
Granted, Lorena Gonzalez, the author of this appalling mess did throw freelance writers, 
photographers, photojournalists and a few others a small, almost laughable bone. Or it would be laughable if the bill wasn’t already negatively impacting our right to work. According to Kristen Lopez in an article for RogerEbert.com:
A freelancer under AB5 would only be allowed to write 35 articles—articles have an incredibly loose definition—before the site would be forced to hire the writer as an employee. This article cap, which California State Assemblywoman and voice of AB5 Lorena Gonzalez herself calls “arbitrary,” threatens to not only destroy the digital media landscape, but takes aim at the marginalized people who have found their voice through writing online.
Worst of all, the companies the bill was meant to target; Uber, Lyft, Door Dash, and Postmates, are already thumbing their noses and intending to go on, business as usual, with perhaps a few slight modifications to their apps. An article published by Bonnie Kristian in The Week states:
Naturally, Uber and Lyft have already announced they have no intention of changing how they classify their drivers. “Just because the test is hard doesn’t mean we won’t be able to pass it,” said Uber’s chief legal officer, Tony West, last month. “We continue to believe that drivers are properly classified as independent [contractors],” he added, vowing readiness for a legal fight.
So A.B. 5 may well fail to achieve its main goal. But that doesn’t mean it won’t produce any changes. On the contrary, it will effectively make freelance writing and other creative work illegal, even while appearing to accommodate workers’ needs.
I don’t doubt Uber has sufficient funds to mount a strong legal team given the costs they’ve saved by treating their drivers as independent contractors up to this point. If you ask me, the State of California could have saved a great deal of time, aggravation, and effort by simply applying the Dynamex ruling, and left well enough alone for the rest of us.
Arbitrary Just Ain’t Right!
Ms. Kristian goes on to comment on the 35-submission annual cap by saying:
The dangerous ignorance behind this law is on display in comments from Assemblywoman Lorena Gonzalez, the bill’s author, to The Hollywood Reporter. “As for how lawmakers settled on the 35-submission figure, Gonzalez says that she and her team decided that a weekly columnist sounded like a part-time worker and so halved that worker’s yearly submissions. After protest from some freelancers, the number was bumped up to 35. ‘Was it a little arbitrary? Yeah. Writing bills with numbers like that are a little bit arbitrary,'” Gonzalez conceded.
“A little bit arbitrary” is generous. I’d say something more like “capricious,” “cruel,” and “willfully obtuse.” Maybe for the most elite and privileged pundits, a single weekly column is a part-time job. The rest of us — i.e., the vast majority of freelancers, many of whom (myself included) consider the lack of employer-provided benefits a fair trade for the flexibility freelancing brings — write more than one or two days a week.
I might also point out that writers don’t typically charge an hourly rate. We set our rates based on a variety of factors, but in the end, when, where, and how we complete our assignments is up to us as long as we meet our deadlines. The fact that we’re writing for a publication shouldn’t even be a consideration.
We Could Just Use the Laws We Already Have
Heidi Lynne Kurter, writing for Forbes points out there was already a law on California’s books:
In January 2012, California passed Senate Bill 459 (SB459) making it unlawful for companies to wrongfully classify workers. Those found guilty risk being fined anywhere from $5,000 to $15,000 per violation and $25,000 for repeated offenses. SB459 also empowers the Labor Commissioner to assess civil and liquidated damages against violators. Yet, the law hasn’t been used to challenge worker misclassification at any of the gig platform companies such as Uber or Lyft.
I find it interesting given Ms. Gonzalez’ history as an officer of the AFL-CIO in San Diego, that one of the “hopes” for AB5 was, according to an article by Rebecca Bodenheimer for Dame Magazine:
Its passage has been hailed as a win for labor rights, particularly because it means ride-share drivers could potentially unionize.
Do I sense a a bit of self-interest and a whole lot of Special Interest for the Unions here? Do we really need a new law to try to give the Unions more membership, and some of the clout they’ve lost as membership dwindled?
What’s a Little Collateral Damage Among Constituents?
Ms. Bodenheimer also addresses the very real possibility this bill will result in increased homelessness in a state which already has a serious problem. She cites an elderly writer:
Finally, there’s the issue of age discrimination in traditional workplaces and the ways freelancing has allowed older writers to make a living. Michele Anna Jordan has been writing weekly food columns for the Santa Rosa Press Democrat since 1997. She stated, “I just turned 70…I have a large dedicated readership, developed over a period of 22 years and literally thousands of columns. The loss of this client would put me at risk of homelessness and, of course, deep despair. Who would hire a 70-year-old woman with a set of nontraditional skills? No one.”
Certainly the State would be much better off if people like Ms. Jordan continued working, earning a decent living, keeping their homes, and yes, paying income taxes which help support Ms. Gonzalez and her dangerously misguided cohorts.
Already news agencies and publications are terminating contracts with their California freelancers. Since the burden of proof has been put on the employers, they’re cutting their losses rather than becoming entangled in a mess even the writers of the “new” law can’t adequately answer.
Options Aren’t Great Right Now
It means people like me and thousands of others will have several unsatisfactory choices:
- Find full-time employment – not only unlikely, but in many cases untenable.
- Find enough separate clients to make up for what they lose from anchor clients – in the first place, anchor clients are already looking outside the state, and in the second, the time invested in finding and managing that many clients is time better spent productively.
- Move out of state – this might be a short-term solution, as there’s already H.R. 2474 looming on the horizon on the Federal level which has been ironically named “The Protecting the Right to Organize Act of 2019” (further Union-led implications)
Yet, it isn’t only writers and others who work with the media who are being affected. Ramifications resulting from a reduction in translators and mental health workers are already being felt, and these are areas which affect society as a whole in ways I can’t even begin to wrap my own head around.
To paraphrase what the Washington Post so aptly noted, the lawmakers dove into this unholy mess with their eyes closed; completely clueless as to who their misguided and dangerous efforts would truly harm. Heaven help us all in the coming months. Only Uber, Lyft, and their ilk will come through relatively unscathed thanks to their pricey, double-talking lawyers.
There are an awful lot of us hoping for the return of just a little common sense. In the meantime, we’re writing and calling our representatives. Maybe the squeaky wheel will get the attention and consideration it deserved in the first place.
About the Author
Sheri Conaway is a Holistic Ghostwriter, and an advocate for cats and mental health. Sheri 
believes in the Laws of Attraction, but only if you are a participant rather than just an observer. Her mission is to Make Vulnerable Beautiful and help entrepreneurs touch the souls of their readers and clients so they can increase their impact and their income. If you’d like to have her write for you, please visit her Hire Me page for more information. You can also find her on Facebook Sheri Levenstein-Conaway Author. And check out her new group, Putting Your Whole Heart Forward.
Be sure to watch this space for news of the upcoming releases of ” Rebuilding After Suicide” and “Sasha’s Journey”.
