Rich Pedroncelli/AP Photo
California Assemblywoman Lorena Gonzalez speaks at a rally after her measure to limit when companies can label workers as independent contractors was approved by a state Senate committee, July 10, 2019, in Sacramento, California.
When AB-5 passed the California legislature and was signed into law in September, it was heralded as landmark legislation. And when it goes into effect on New Year’s Day, it will extend basic worker protections to at least one million workers, many of whom worked as independent contractors—for low pay and no benefits—even though they’ve worked for just one company. The bill confers minimum wage, overtime eligibility, and sick leave, among other protections, to gig economy freelancers, and forces employers to pay taxes for unemployment and disability. The highest-profile companies affected by those changes are Silicon Valley behemoths like Uber, Lyft, DoorDash, and Postmates, which have, according to the new law’s champions, been misclassifying their workforce for the purpose of suppressing wages. “It will have major reverberations around the country,” David Weil, a top Labor Department official during the Obama administration, told The New York Times after it passed.
It was expected that the blowback would be fierce and formidable. By the time the ink had dried on the bill, Uber, Lyft, and DoorDash had pledged $90 million to back a 2020 ballot measure that would functionally exempt them from the law, in exchange for elevated wages. The $90 million may be just the opening gambit; it’s entirely conceivable that it will be the most expensive ballot measure in California history.
But the most prominent legal challenge and popular pushback to the bill hasn’t come from Silicon Valley; it’s come from freelance journalists, who, on Tuesday, sued to block AB-5. Two separate groups, the American Society of Journalists and Authors, and the National Press Photographers Association, filed in the U.S. District Court for Central California, claiming that AB-5 constitutes a violation of First Amendment rights for freelance journalists.
That lawsuit was given added firepower by an announcement on Monday by Vox Media, which owns the sports blog SB Nation, as well as New York magazine, its web properties The Cut, Intelligencer, Vulture, and Grub Street, as well as Recode, and is backed by NBCUniversal, which itself is owned by Comcast. Laying blame for the decision at the feet of AB-5, Vox decided it could no longer retain 200 California-based writers who wrote “thousands of blog posts” in 2019 for its SB Nation sports website. The move, according to John Ness, executive director of SB Nation, was “necessary in light of California’s new independent contractor law, which … restricts contractors from producing more than 35 written content ‘submissions’ per year.”
That announcement was met with outrage from a number of freelancers, who trained their anger not at Vox Media, but at AB-5 and its author, California State Assemblymember Lorena Gonzalez. But there’s ample reason to be skeptical of the causality of the firings, and of Vox’s motivations. In fact, for two years, Vox has been embroiled in not just one but multiple class action lawsuits, alleging routine misclassification of freelancers who should have otherwise been employees. SB Nation has been embroiled in a host of controversies over its use of unpaid contributors to goose its revenue. According to one suit, Cheryl Bradley, site manager for the Colorado Avalanche team’s SB Nation site called Mile High Hockey from 2013 to 2015, regularly worked 30 to 40 hours a week and received a stipend of $125 per month.
Owing in part to such legal issues, SB Nation was expected to be forced to change its approach long before AB-5 was even introduced. Some of its writing slots, though far fewer than the number of current freelance contributors, will be converted to full-time or part-time employment. And in a show of generosity, the site generously offered its fired freelancers the opportunity to continue writing for free.
Furthermore, the justification put forward by Ness, who has been referred to by Deadspin as “one more bullshitter [in] Vox Media’s upper management,” is spurious, as well. AB-5 does not mandate that writers who publish more than 35 submissions be given full-time jobs by their publishers, nor does it limit freelance writers to 35 submissions per client per year. In fact, AB-5 actually loosens the standards created by the California Supreme Court’s Dynamex decision in 2018, which held that freelancers would be considered employees if they contributed even one piece.
If there’s reason to be skeptical about the opportunism of Vox Media, a company with a decorated record when it comes to squeezing its labor force, that skepticism should also extend to the group that’s bringing the suit on freelancers’ behalf, the libertarian Pacific Legal Foundation. The legal eagles of PLF have their own dubious track record, having brought cases against the Endangered Species Act, the Clean Water Act, affirmative action, women on corporate boards, and tenants’ rights. They’ve routinely worked on behalf of Big Oil, Big Tobacco, and various other corporate interests to challenge a battery of environmental and consumer protections.
That’s not to minimize the impact for certain freelancers who have seen income streams threatened. The media industry has been one of the nation’s most precarious in recent decades. Some journalists have used the flexibility afforded by freelancing to maximize earnings, but far more have toiled for subpar wages with no security whatsoever—or have left the profession altogether. The suggestion that a company backed by $200 million from NBCUniversal with the financial resources of the Comcast conglomerate at its disposal can’t afford to pay its writers should be met with some serious incredulity.
This won’t be the last or only formidable legal challenge AB-5 meets. There has also been a legal challenge filed by truckers (though the law should enable thousands of underpaid port truckers misclassified as contractors to gain employee status), and there will likely be other challenges still to come. Uber, for one, claims the law doesn’t apply to it because its core mission, the company recently revealed, isn’t providing transportation.
The assault on labor law that has resulted in the broad disappearance of worker protections and traditional, full-time employment has been a decades-long campaign. Whose fault is that? Certainly not the handful of attempts that have been made by legislators and courts to defend workers’ rights, while corporate profits continue to break records amid stagnant wages. When it comes to AB-5, the notion that overzealous worker protections are somehow to blame, rather than exploitative, money-grubbing corporate monoliths, doesn’t hold up to scrutiny. Companies like Vox Media will likely continue attempting to deputize their low-wage workers to wage war against worker protections.
That battle will play out in the courtroom, and will likely culminate at the ballot box this fall. At that point, it will be up to voters to decide to what standards the country’s largest corporations should be held.
