California State Assembly District 80 issued the following announcement on Feb. 27.
After more than a year of meetings, fact-findings and discussions with freelance writers and journalists, California State Assemblywoman Lorena Gonzalez (D-San Diego) announced amendments to her landmark state law, Assembly Bill 5, that will strengthen protections for workers in this industry.
“Having heard additional feedback from a variety of freelance writers, photographers and journalists, we are making changes to Assembly Bill 5 that accommodate their needs and still provide protections from misclassification,” Assemblywoman Gonzalez said.
When AB 5 passed last year, Assemblywoman Gonzalez acknowledged that the Legislature’s work was not done. She introduced Assembly Bill 1850 in January to continue working on the issues affecting a variety of industries following the unanimous 2018 California Supreme Court’s Dynamex decision that established a three-part ABC test for determining employment status. In the first substantive round of amendments to AB 1850, Assemblywoman Gonzalez is making a variety of changes to how AB 5 applies to freelancer writers, photographers and editors.
The amendments remove the cap on the number of submissions that a freelancer writer, photographer or editor can provide a single hiring entity before they must classify the individual as an employee. To strike a balance and protect employment opportunities in these professions, the amendments specify that a contractor cannot replace an employee position.
When these individuals provide services under a contract, the contract must specify the rate of their pay, a defined time by which they must receive their payment, and the individual’s intellectual property rights to the work. The amendments also specify that freelancers cannot be restricted from working for more than one hiring entity and cannot primarily perform their work at the hiring entity’s business location.
AB 5 already contains requirements that hiring entities of freelance writers, photographers, and editors must verify in order for Dynamex and the ABC test to not apply, including that:
- The individual is providing services through a sole proprietorship or other business entity.
- The individual maintains a business location that is separate from the hiring entity, which may include the individual’s residence.
- The individual has a business license, if their work is performed after July 1, 2020.
- The individual has the ability to set or negotiate their own rates for the services performed.
- The individual has the ability to set their own hours, outside of project completion dates and reasonable business hours.
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