AB5 forbids businesses to use contractors unless the companies can pass a stringent requirement known as the “ABC test.” It’s designed to ensure that all workers are classified as employees unless they perform their work independent of supervision, have an established business doing the same sort of work for multiple customers and are doing work that isn’t part of the company’s core business. Meeting one or two of these requirements isn’t enough; you must meet all three.
At the time of AB5’s passage, I noted that its aim was a mite quixotic, given that its primary targets, such as Uber and Lyft, were still unprofitable. If they couldn’t make a profit using drivers as contractors, it was hard to see how they could afford to turn the drivers into staffers with regular schedules, hourly pay and benefits. AB5 seemed more likely to drive these firms out of the state, taking their part-time jobs and their useful services with them. And not just gig-economy companies; in passing, I also noted that AB5 seemed to ban most freelance journalism.
It turned out to be a bit more complicated than that; the legislature had actually created a special exception for journalists, allowing them to write 35 articles annually before they’d be considered employees. That still seemed unworkable to this journalist, and should have to anyone who’s ever been near a newsroom — the law would, for example, make it illegal to use a UCLA professor as a weekly columnist without taking on the prof as an employee.
You can guess what’s coming next, can’t you? With Jan. 1 approaching, Vox Media, parent company of Vox.com, just announced that it will be laying off hundreds of freelancers in California. I mentioned my September remarks above not as a tiresome “I told you so” but to note that the effect on freelance writers isn’t some unanticipated side effect of the law. It was the predictable result of trying to force companies into a 9-to-5 employment model. That model just doesn’t fit a lot of businesses, including the business of those journalists who were inexplicably cheering AB5 — or worse, explaining to freelancers, from the safety of a staff job, that actually the law was good for them.
AB5’s supporters argued that it would give news organizations incentives to bring contractors in-house, rather than exploiting them with insecure piecework. After all, the Los Angeles Times had brought 30 contractors in-house after a 2018 California Supreme Court decision first established the broader use of the ABC test. And shouldn’t we want that for all journalists?
As a staffer myself, of course I want that for all journalists — who want staff jobs. Which is not all journalists; some, for various reasons, can’t take on full-time work or simply prefer the freedom of being able to write for multiple outlets. And there is work for them because the advertising-based business model that supported journalism for more than a century has imploded, and many news outlets are on a glide path to financial ruin. They’re in the same position as Uber and Lyft, only more so: Increasingly, there are no profits to redistribute to workers. Given that reality, the alternative to “cheaper freelancers” is usually not “expensive staffers” but “no one.”
California’s legislature hasn’t done a darn thing to change those fundamental economics, as the Vox layoffs made clear. Now the freelance apocalypse is all over journalist Twitter, and two groups representing freelancers have filed suit to block the law.
But an obvious, important question remains: If this law is so terrible for freelance writers, who were given extra protections from its job-killing effects, then how awful must it be for everyone else?
What AB5 has done to freelance writers is the smallest problem with the law, even if it has stirred the most noise. The much bigger problem is the choices it took away from hundreds of thousands of people who don’t have a megaphone to broadcast their agony and, come New Year’s Day, also may not have an income.