Why ASJA Leads the Fight for Freelancers’ Rights

Our rights as freelancers to work as we choose—the rights that give us the freedom we cherish—are under attack as never before. A restrictive new law in California and similar legislation being considered in other states will restructure the relationships we have with our clients and change the very nature of how we work. We at ASJA are standing up for freelancers across the United States, in federal court and through lobbying efforts with our colleagues.  

Just before the holidays, on December 17, ASJA, Inc. and the National Press Photographers Association filed a civil lawsuit in a California federal court challenging the constitutionality of sections of Assembly Bill 5. At issue are the new law’s unreasonable restrictions placed upon the number of submissions a freelance writer or photographer can make before being classified as an employee of the client. Three days later, we filed a motion for a preliminary injunction, asking the court for an order preventing the enforcement of the submission restrictions pending resolution of the lawsuit. Our first court hearing is scheduled for early March.

This is the backstory of how we wound up in federal court. It’s also the story of why I’m very proud to lead ASJA.

It’s generally advantageous for an employer to call workers independent contractors rather than employees to avoid what they call administrative red tape—withholding, taxes, workers compensation insurance, and benefits among them. So advantageous, actually, that misclassification of workers as independent contractors, when they should really be employees, has become a national problem that has grown with the explosion of the gig economy.

After nearly two decades of litigation, the California Supreme Court finally took on the independent contractor/employee dilemma in Dynamex Operations West, Inc. v. Superior Court. Rather than keeping the status quo, a flexible classification scheme adopted in another state court case, S. G. Borello & Sons, Inc. v. Department of Industrial Relations, the court crafted a new, more stringent three-part test (a new so-called “ABC” test) that made it more difficult to classify a worker as an independent contractor. The change was welcome news for workers who were being exploited but an unsettling development for freelance writers (ASJA’s membership), photographers, and other workers who preferred their independent status.

The Dynamex decision came down in April 2018. A few months later, with great reporting and an article by Past President Randy Dotinga in ASJA Magazine, we were one of the first national organizations to speculate that Dynamex could pose a serious threat to California freelancers. That was no easy feat for a publication not designed for reporting breaking news. Freelancers owe Randy, Laura Laing (current ASJA Vice President, then Publications Chair), former editor Aleigh Acerni, and Kellen staff a round of applause for pulling the article together on an unusually fast deadline. The prophetic article, Heads Up!, was published in the September/October 2018 issue of ASJA Magazine and is worth reading to be reminded about how ahead of the curve we were.

The California legislature in 2019 set about codifying—and more troubling for freelancers, expanding—the Dynamex decision. The result was Assembly Bill 5, which became law in September, scheduled to take effect on January 1, 2020. Randy and JoBeth McDaniel (ASJA’s First Amendment Committee Chair) were our boots on the ground in California, as the bill made its way through committees and the legislature. They cobbled together an alliance of writers’ organizations and lobbied for the interests of freelancers. They were successful in obtaining some concessions from the law makers, but the state legislature was willing to bend only so far to protect a freelancer’s right to freelance.

The final version of AB5 went to the governor with arbitrary and unreasonable limits on the amount of work that freelance writers and photographers could submit without losing their status as independent contractors: a cap of 35 annual “submissions” to the same employer. If a freelancer makes more than 35 submissions to that employer in a year, AB5 kicks in and mandates that the employer take on the freelancer as an employee, with the attendant obligations and benefits. This is an obviously unattractive option for everyone involved: employers who won’t, or can’t, add to their employee rolls, and freelancers who value their freedom to work independently.

When Gov. Gavin Newsom signed AB5 in September, the option of making the law more freelancer-friendly through negotiations and lobbying vanished. What remained was a lawsuit challenging the freelancer provisions and ASJA began the search for a law firm interested in taking on the case.

There’s an adage in horse racing—“horses for courses”—holding that some horses run better at one racetrack than at another, and matching a law firm with a case is much the same as matching a horse with a racetrack. The Pacific Legal Foundation, a national public interest law firm with offices in California, was a perfect fit. They offered pro bono representation. ASJA’s Board of Directors unanimously approved joining a lawsuit as the lead plaintiff. The National Press Photographers Association also joined as a plaintiff. The complaint, styled American Society of Journalists and Authors, Inc., and National Press Photographers Association v. Xavier Becerra, was filed in the US District Court for the Central District of California, Western Division, on December 17.

The complaint argues that portions of AB5 restricting the amount of work that freelancers can do impermissibly violate the First and Fourteenth Amendments to the US Constitution. These are important claims and involve freedoms of speech and the press and equal protection under the law. An accompanying motion for a preliminary injunction that would halt enforcement of AB5’s freelancer provisions until resolution of the lawsuit also was filed. You can learn more about PLF here, and follow the progress of our case here.

Signing on as a plaintiff in a federal lawsuit was not a decision made lightly by the Board, but it was necessary to help protect the immediate interests of our members and, for that matter, non-member freelancers, in California. Looking ahead, similar legislation is under consideration in other states, including New Jersey and New York. It’s fair to expect the battle for freelancers’ rights to continue on several fronts at the same time our lawsuit makes its way through the courts.

I expect ASJA to have a leadership role in these efforts, but even with an enormous amount of help from Kellen staff, the stress of a lawsuit and lobbying on a volunteer organization is tremendous. Please consider volunteering on an ASJA committee if you haven’t already. If you’re waffling about whether to renew your membership, please remember that the bigger ASJA is, the more influence we can have in lobbying. Finally, encourage your non-member colleagues to join. Donations are also welcome.

There truly is strength in numbers.

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