Opinion

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  • To Hell with AB5

    by Keegan Burke


    As many of you may know, I recently transitioned to writing full time. Prior to 2022, I’d had several careers as a Chef, a Schoolteacher, a Gardener, and a lot of other jobs both related and unrelated in-between. It had always been my dream to be a writer, since the third grade, in fact. I found myself, as the years wore on, spending more and more of my free time writing, and in 2017 I began working in earnest on my first novel.

    Along came 2019; I moved to Japan with my wife to care for her aging, newly widowed mother. I kept my bank accounts and an address in California as a home base, so that if I were to need to move back suddenly I could, and so that I would qualify for things like a driver’s license, freelance work in the US, etc. Since 2019, I’ve been back once. I stayed for several months to ease the pressures on my own family who are caring for the elderly, and to spend time with loved ones I hadn’t seen for years.

    Upon returning to Japan, I began looking for work as an English Teacher. This was not my career of choice (I was a Science Teacher in the States), but it is what most of us foreigners in Japan do. In fact, if you don’t speak Japanese with at least some degree of fluency, you’ll have a hard time finding work doing anything else outside of Tokyo. Needless to say, I don’t live in Tokyo.

    After applying to a handful of companies, I struck out again and again because my timing was terrible (I was looking for work in April – the beginning of the school year is March-April). A few of the companies liked me, but just didn’t have any open positions in my area. At that point I decided to go all in. I’m going to be a writer – hell or high water.

    I started a website and began writing short pieces and submitting them to magazines. Now, about a month later, I’m still writing, still submitting, but still unpublished. In order to make a little money on the side while my work is being considered (and rejected) by publishers, I decided to try my hand at transcription. What have I got to lose, right? It would be good typing practice and it would be writing that pays, even if the words weren’t my own.

    So, I signed up with Scribie, got my PayPal account verified and ready to go, and logged in to get started. Lo and behold, what do I see?


    “PayPal accounts of California residents are disallowed due to AB5 Law.” (4)


    Ok, I’m not going to let this discourage me just yet. I’ll research AB5, whatever that is, and build an informed opinion… So I Google AB5: jargon, legalese, gibberish, balderdash, more jargon… Huh. Wait, what? Horrifying realization.

    So, it turns out that, in order to “protect” contract employees, California passed this law back in 2019 in response to Uber and Lyft, who were apparently flogging their drivers in the streets or something of the sort (If you are a driver who has been flogged by your employer, I apologize for making light of your suffering). The AB5 law effects ALL contract employees, including freelancers of any kind. It essentially forces employers to hire contractors as employees with benefits, unless they meet certain specific criteria. The text of the law states that people…


    “shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business.” (1)


    Wait a minute… “free from the control and direction of…” who would ever pay this imaginary contractor… for anything? Aren’t contractors hired for something specific – i.e. controlled/directed? “…performs work…outside the usual course of…business…” So I suppose that bars me from writing for any magazines, journals, blogs, or anything else to do with writing? Finally, I’m an employee, not a contractor, unless I’m “…in an independently established…business.” I would assume that goes without saying.

    At this point, I’m ready to smash something. How on earth am I supposed to get work as a freelance writer under these conditions? It turns out, I am not the only one who is upset about this, as it effects pretty much anyone who plans to do freelance work with a California address. I worry that it may well stop my freelance writing career before it has even began. I read on…

    At the bottom of the text of the law, there is a laundry list of exceptions and exemptions. These include: insurance agent, physician, dentist, podiatrist, psychologist, veterinarian, lawyer, architect, engineer, private investigator, accountant, securities broker, investment advisor, salesperson, commercial fisherman, realtor, repossession agency, construction trucker, “business service provider,” ’employee of a contracting business or referral agency’ (talk about a loophole for exploitation), or an individual providing “professional services,” which I’ll get into in a moment.

    I understand the reasons behind the law: “the Court cited the harm to misclassified workers…from companies that use misclassification to avoid obligations…etc. etc.” (1) But, rather than writing a law that provides protection for workers, California has written a law that discourages any company in the world from hiring California-based contractors. Many companies, like the aforementioned Scribie, are simply barring Californian freelancers because they don’t want to deal with the complications (4), others, like Vox, have laid off existing freelancers (3)(5), and still others, like the Los Angeles Times, have converted freelancers to employees. (5)

    There is one stipulation in the law that intends to mitigate the harm done to freelance writers. This is the statement under “Professional Services,” which must “set their own rates,” “set their own hours,” “schedule their own appointments,” “maintain a business license,” and “Issue a Form 1099 to the business owner from which they rent their business space.” (1)
    In Section 2750.3. (c)(2)(x): The law doesn’t apply to:

    “Services provided by a freelance writer, editor, or newspaper cartoonist who does not provide content submissions to the putative employer more than 35 times per year.” (1)

    Gee, thanks California. Now I can be a freelance writer, I just have to steer clear of plentiful and specific job opportunities that might include, but are not limited to: writing any kind of serial that would come out more than once per month on a given platform, transcribing, recording audiobooks, or engaging in any kind of work that involves many small jobs that can be done quickly on my own schedule for a small amount of pay per job.

    In an effort to protect workers from exploitation, California has now made it more difficult than ever for people to be independent of exploitative employers by freelancing. This is extremely discouraging, but I will keep on plugging away, and perhaps I will be looking for ways to start over again with a new business address, new bank account, new PayPal account, etc. somewhere other than the great state of California.



    UPDATE:
    California has now passed another law, AB2257 (6), which repeals part of the old law, rewriting it to get rid of a few of the specific things people complained about, such as the 35 piece limit for freelance writers. It also added several categories to the list of exempt contractors. In my opinion, this is good to know, but really does not address the issue of companies de-investing in California freelancers to avoid complications. If I could offer one piece of advice to the government, be it local, state, federal or international: SIMPLIFY YOUR SHIT.
    Aside from a handful of lawyers, bureaucrats and politicians, nobody wants to sift through pages of documents, check all the boxes and fill out all of the applicable forms every time they swap in a new roll of toilet paper. We should not be creating legislation that has more text in the exceptions and exemptions than it does in the actual body of the law. If you actually expect people to respect your office and follow the rule of law, draft legislation that is clear, concise, and only addresses the problem it was created to address. At that, I will drop the proverbial mic.




    For further reading on the subject, if you aren’t bored out of your wits already:


    (1) https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB5 (The Law)

    (2) https://workspace.fiverr.com/blog/the-ab5-law-and-how-freelancers-are-affected/ (informative article on AB5 by Jodi Price)

    (3) https://contently.net/2020/01/30/resources/we-polled-573-freelancers-about-ab5-theyre-not-happy/ (another great article by Philip Garrity)

    (4) https://scribie.com/transcription-test#files (Scribie’s initial login page after you’ve created an account)

    (5) https://www.flexjobs.com/blog/post/california-ab5-freelancers/ (another well-researched article about AB5’s implications by Rachel Pelta)

    (6) https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB2257 (2020 amendment to the Law)

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