• by Rob Williams , October 14, 2020

Freelance journalists this year were granted a minor reprieve as California amended part of a law that restricted how much they could write for a single publisher. Unfortunately, they won't find any relief if other bills aimed at killing off the gig economy become federal law.

The biggest threat comes from the Protecting Right to Organize (PRO) Act, which the House of Representatives passed in February to face a dead end in the Senate. Assuming the Senate flips to a Democratic majority and that Democratic candidate Joe Biden wins the presidency, the bill has a much greater chance of becoming law next year.

Freelance journalism would become a relic of a bygone era, as publishers would be forced to apply a set of rules called the "ABC Test" when working with independent contractors. The test, which has been around since the Great Depression but only selectively enforced, consists of three criteria to determine whether a contractor should instead be classified as an employee.

To be considered an independent contractor, a freelancer would have to be (A) free from the publisher's control, (B) in a different line of business than the publisher and (C) typically engaged in the same kind of work for more than one company, to paraphrase the legalese in the bill.

It's hard to imagine any interpretation of the bill that allows a publisher to hire a freelance writer, especially since they're in the same kind of business.

The ABC Test is a key part of another bill that U.S. Sen. Patty Murray (D-Washington), introduced last month called the Worker Flexibility and Small Business Protection Act. Its fine-sounding title belies its pledge to enshrine rules that will end freelance journalism in the U.S., and should never be signed into law.

Unfortunately, California made the ABC Test a central part of a bill called AB5 that took effect this year, mostly to target gig economy startups like Uber, Lyft, Postmates and DoorDash, whose drivers are independent contractors.

AB5 also prevented journalists from contributing more than 35 articles to a single publication, creating a book-keeping nightmare for publishers that were better off avoiding the hassle of engaging a freelancer in the state. Amid complaints from freelancers who lost work, California exempted journalists from the ABC Test in a subsequent law called AB 2257, which is still vague enough to dissuade publishers from hiring a freelance writer. I'm not a lawyer, but I wouldn't recommend that a publisher hire a California freelancer unless AB5 is repealed.

The conceit of these laws is that they are somehow helping freelance journalists who aren't asking to be classified as employees. The lawmakers who support them don’t recognize how the labor market has changed since the 1930s, especially for well-educated professionals that can sustain themselves as independent contractors.

They can't seem to imagine that freelancers typically choose such work arrangements for greater flexibility. As a full-time freelancer, I think it's a better way to diversify my income among a wider variety of publishers and assignments, including ghost writing for executives.

As I learned while working at Lehman Brothers for almost a decade, even giant corporations with a 160-year history can collapse overnight. No one should ever consider a job completely safe, and that's especially true in the embattled publishing industry that has shed thousands of workers.

For more insights about the perspective of freelance journalists, I recommend people follow the Twitter account of Kim Kavin. She's a New Jersey-based writer who argues that instead of the ABC Test, the more flexible "IRS Test" is a better legal model to provide worker protections and let independent contractors make a living.

As cofounder of the ad-hoc coalition Fight for Freelancers New Jersey and a member of the American Society of Journalists and Authors, Kavin is one of the most articulate opponents of any law that applies the ABC Test to journalists. I hope more lawmakers heed her recommendations instead of potentially hurting the livelihoods of freelancers and silencing their voices.