Freelance Journalists Sue California Over New State Law Regulating Gig Workers

Updated: 3:45 p.m.

Two national groups representing freelance writers and photographers on Tuesday filed the second legal challenge to California’s broad new labor law that 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 law, AB 5, was passed by the state Legislature earlier this year and is set to take effect Jan. 1. The bill makes it harder for companies to classify workers as independent contractors instead of employees, who are entitled to minimum wage and benefits such as workers' compensation. It establishes the nation's strictest test on who qualifies as an employee and could set a precedent for other states to follow.

The lawsuit filed by the Pacific Legal Foundation, a nonprofit libertarian group, 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 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.”

“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.

Gonzalez also responded on Twitter to criticisms from some freelance reporters and photographers.

Attorney General Xavier Becerra, who is also named in the lawsuit did not respond to comment.

The Pacific Legal Foundation brought the lawsuit on behalf of the organizations and filed it in federal court in Los Angeles.

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 a 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 “makes it impossible for us to continue with our current California team site structure because it restricts contractors from producing more than 35 written content ‘submissions’ per year,” the company said on its website.

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 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 new law, arguing it would harm 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. Uber also said it will keep treating its drivers as independent contractors and defend that decision in court if needed.