SACRAMENTO — Freelance writers and photographers on Tuesday filed the second legal challenge to a broad new California labor law that they say could put some independent journalists out of business.
“You could hit 35 (submissions) in a matter of a few weeks, and we don’t feel that should require us submitting a W2, sitting in an office and tethered to a computer and under the oversight of one client. People are losing clients, income. Their livelihoods are under threat.” — Los Angeles-based writer Maressa Brown
The law taking effect Jan. 1 aims to give wage and benefit protections to people who work as independent contractors. While the public focus has been largely on ride-share companies such as Uber and Lyft, the lawsuit brought by the American Society of Journalists and Authors and the National Press Photographers Association says the law would unconstitutionally affect free speech and the media.
The lawsuit filed by the Pacific Legal Foundation challenged what it calls an “irrational and arbitrary” limit of 35 submissions each year to each media outlet.
That has “thrown our community into a panic, given that in the year 2020 digital media is a whole different beast than newspapers and journalism of the past,” said Los Angeles-based writer Maressa Brown, who founded California Freelance Writers United in September.
“You could hit 35 (submissions) in a matter of a few weeks, and we don’t feel that should require us submitting a W2, sitting in an office and tethered to a computer and under the oversight of one client,” said Brown, who likes having up to 15 clients at one time. “People are losing clients, income. Their livelihoods are under threat.”
The law establishes the nation’s strictest test for which workers must be considered employees and could set a precedent for other states.
The Associations Have More Than 650 Members in California
The lawsuit says the freelance restriction draws “unconstitutional content-based distinctions about who can freelance,” noting that “the government faces a heavy burden of justification when its regulations single out the press.”
The Pacific Legal Foundation, a nonprofit libertarian group, filed it in federal court in Los Angeles.
“First, it was the Endangered Species Act, then women on corporate boards, and now the Pacific Legal Foundation is attacking California’s landmark workplace rights law. That should come as no surprise to anyone,” the bill’s author, Democratic Assemblywoman Lorena Gonzalez of San Diego, said in a statement.
The two associations together have more than 650 members in California. Their lawsuit asks a judge to invalidate the portion of the law that would affect them.
The lawsuit was filed the day after the digital sports media company SB Nation, owned by Vox Media, announced that it would end its use of more than 200 California freelancers, switching instead to using a much smaller number of new employees.
The California law resulting from Assembly Bill 5 “makes it impossible for us to continue with our current California team site structure,” the company said on its website.
The Law May Be Suspect on Free Speech Grounds
The new law implements a legal ruling last year by the California Supreme Court regarding workers at the delivery company Dynamex. But the Pacific Legal Foundation lawsuit says that ruling would have had little direct effect on professionals engaged in “original and creative” work, like its clients.
“The bill represents an existential threat to our industry. Content doesn’t matter if you can’t put it on peoples’ doorsteps.” — Jim Ewert, general counsel for the California News Publishers Association
The law gives newspaper companies a one-year delay to figure out how to apply to the law to newspaper carriers, who work as independent contractors.
“The bill represents an existential threat to our industry,” said Jim Ewert, general counsel for the California News Publishers Association. “Content doesn’t matter if you can’t put it on peoples’ doorsteps.”
His organization is not involved in the lawsuit, but he said the government “has to be mindful of the impact it is going to have on the freedom of expression.”
The law may be suspect on free speech grounds for singling out a particular classification of worker engaged in expressive activities, Ewert said. And he said this particular facet has the potential to harm what he called “underrepresented voices” that may be more limited in speaking out for minority, low income, LGBT or other communities.
The California Trucking Association last month filed the first challenge to the law on behalf of independent truckers. Uber, Lyft and DoorDash have said they will spend $90 million on a 2020 ballot measure opposing the law if they can’t negotiate other rules for their drivers.
