AB5 Has 'Resulted in Lost Freelancing Opportunities' for Writers, Visual Journalists

Sarasota, FL (WorkersCompensation.com) Many freelance journalists will be reclassified as employees under California’s Assembly Bill 5, in violation of the First and Fourteenth Amendments to the U.S. Constitution, according to a complaint filed this week. The American Society of Journalists and Authors and the National Press Photographers Association filed the suit against Xavier Becerra in his capacity as California’s attorney general.

The new law is designed to reclassify some contract workers as employees, giving them access to rights and benefits, such as workers’ compensation. It exempts some professions. Freelance journalists are exempted if they sell no more than 35 stories or pictures to a given publication in a year.

“The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the government from drawing arbitrary distinctions between similarly situated professionals,” the complaint says. “Granting a full exemption from AB 5 to speaking professionals who engage in marketing, graphic design, grant writing, and fine arts, but subjecting speaking professionals like Plaintiffs’ members who are still photographers, photojournalists, freelance writers, and editors, to a limit of 35 content submissions per publisher per year, creates an irrational and arbitrary distinction among speaking professionals.”

Those who would be reclassified as employees will face extra costs, it says. Many expenses will be borne by the employer, such as “unemployment taxes; workers’ compensation taxes; state disability insurance; paid family leave; and sick leave,” it says. But all of them “make plaintiffs’ members’ work more costly — and thus less attractive — to the client-turned-employer.”

The complaint says the threat of enforcing AB 5 “has already resulted in lost freelancing opportunities for Plaintiffs’ members.”

It notes that freelance journalists now have choices over decisions such as whether to attend conferences or events. They can deduct these and other expenses from their federal taxes. AB 5 eliminates that.

“In a tumultuous industry that continues to lay off employees, Plaintiffs’ members find safety in flexibility,” the complaint says. “Rather than being tied to a single employer, Plaintiffs’ members are able to adapt their workload to their financial needs, balance their work with their other responsibilities, and spread their workload across multiple clients to minimize risk.”

The complaint was filed in U.S. District Court for Central California. The plaintiffs seek a declaration “that the challenged provisions of AB 5 are invalid, unenforceable, and void; a permanent and preliminary injunction against any further enforcement of the challenged provisions; plus costs and reasonable attorney fees, pursuant to 42 U.S.C. § 1988. ASJA and NPPA do not seek money damages against Defendant.”

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