The Misinformation Highway

The late Michael Jackson notwithstanding, “ABC” is not as easy as “123,” at least not when the topic of conversation is the controversial ABC test at the heart of California’s new independent contractor law. The test is a basis for determining whether a worker is truly independent or is someone who should be an employee but is misclassified for the convenience of their employer. Misclassifying a worker can be attractive for an employer because there is little paperwork, including withholding taxes and employer contributions to benefits, when workers are independent contractors.

According to the test, a worker is considered an independent contractor only if they:

  1. A) Are free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
  2. B) Perform work that is outside the usual course of the hiring entity’s business; and
  3. C) Are customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Depending on your point of view, California’s AB5 law is either praised as the salvation of exploited workers or maligned as government overreaching that threatens the livelihoods of freelance writers and photographers who rightly value their independence.

The Internet and social media are overflowing with information and misinformation about the pros and cons of AB5 and the ABC test. Sorting them out requires critical thinking and, sometimes, ferreting out less-than-obvious agendas. More about that later.

ASJA’s agenda on the issue is anything but hidden. It’s posted on our website. We oppose AB5 in California and any similar state or federal legislation that limits the amount of work freelance writers can do without sacrificing their status as independent contractors. Our opposition to AB5 is the basis of our federal lawsuit in conjunction with the National Press Photographers Association because the relevant provisions violate the guarantees of the First and Fourteenth Amendments to the US Constitution.

While we acknowledge that the misclassification of some workers is a serious societal concern, our members are successful freelancers who value their independence and the opportunities that the status provides. I’ve yet to come across an ASJA member, or a non-member freelancer for that matter, who argues that “AB5 is great because now I can get the staff job that I’ve always wanted!” Instead, they often complain that they might have to move from California because they can’t make a decent living with AB5 on the books.

ASJA is assembling resources to promote and support grassroots lobbying at the state level where legislation similar but generally even more restrictive than AB5 is being considered in New Jersey, New York, Washington, and other jurisdictions. At the national level, the PRO Act was passed in Congress and has been sent to committee in the Senate. These lobbying projects are necessarily long-term because there’s no indication that lawmakers’ interest in freelancer-hostile legislation will go away in the foreseeable future.

Already active on the ground in several states, including California, New Jersey, New York, and Washington, and everywhere on social media, coalitions of ASJA members and non-members are working tirelessly to educate lawmakers, freelancers, and voters in general about the perils of these laws. And “tirelessly” is not hyperbole on my part. Freelancers only earn money when they freelance, and these people are giving their time (which equals their money) and effort to oppose these laws. We all—every freelancer—owe them our thanks.

I know and have worked with many of the ASJA members who are lobbying against the ABC test around the country. I trust them, and I believe that their efforts are in concert with ASJA’s policy opposing restrictive freelancer laws.

But back to the Internet and social media. Are they reliable sources of information about the ABC test? Maybe, but maybe not. The information that others are posting is important to the message, but so are the parts left out. Here’s an example:

Supporters of the ABC test sometimes point out that the test is not a new legislative initiative (TRUE); that approximately half of the states already use the ABC test for some purpose in their respective employment laws (TRUE again, but with more context needed); and that the test hasn’t caused serious problems outside California because it usually isn’t enforced (probably TRUE, but unverified). There’s a missing word in that last argument, and it’s an important omission.

It’s disingenuous to argue that the ABC test doesn’t threaten freelancers simply because the law usually isn’t enforced because the statement doesn’t tell the complete story. The statement should say that the law usually hasn’t been enforced “yet.” The fact that enforcement has been lax for weeks, months, or even years is largely irrelevant to whether the law will or will not be enforced tomorrow. Administrations and policies change, sometimes unpredictably, and the outdated ABC test always will be a threat to independent writers. Lack of enforcement in the past isn’t a valid reason to ignore the threat today.

My advice is this: always remember that legislative intent doesn’t necessarily equal legislative effect. Read with a very critical eye any legislation, along with all the comments on social media (not just the ones that you agree with). Ask if the legislation truly benefits the individuals the lawmakers say it protects. Then ask if it harms or discriminates against others. Finally, ask who else benefits from the legislation.

For example, on August 30, 2019, the Los Angeles Times reported that losses to California from unpaid employment taxes resulting from misclassification of workers amounted to $7 billion each year. As a result of AB5 the state is likely to recoup some of that, and labor unions that have backed the legislation will gain members and bargaining power in their negotiations with businesses.

Litigation Timeline 

            There are two important court hearings scheduled in the coming days for ASJA’s lawsuit in federal court challenging the constitutionality of AB5’s freelancer provisions as they affect journalists and photographers. On March 9, the court will hear our motion for a preliminary injunction that, if granted, will halt enforcement of the relevant parts of the new law. On March 23, the court is scheduled to address the California Attorney General’s motion to dismiss the lawsuit in its entirety. ASJA and the National Press Photographers Association are the plaintiffs in the litigation.

ASJA’s website will be adding resources pages for grassroots lobbying at the state and federal levels. Check there regularly for updates.