We have written previously about California’s new statute, referred to as AB 5, which codifies and expands the “ABC test” for independent contractors set forth in Dynamex Operations West, Inc. v. Superior Court.

A California ballot initiative that would remove ride-share and delivery drivers from application of the “ABC test” is already underway.

And the California Trucking Association has filed suit challenging the statute.

Now, other organizations have challenged the statute. Specifically, organizations representing freelance writers and photographers have done so, challenging the provision that prevents an individual from submitting more than 35 pieces to a publication per year unless it employs him or her. Cal. Labor Code § 2750.3(c)(2)(B)(ix) and (x). They also challenge the provision that excludes video recording from the still photography and photojournalism exemption. Cal. Labor Code § 2750.3(c)(2)(B)(ix).

In the lawsuit known as American Society of Journalists and Authors, Inc., et al. v. Xavier Becerra, the American Society of Journalists and Authors (“ASJA”) and the National Press Photographers Association (“NPPA”) contend that provisions of AB 5 pertaining to writers and photographers unconstitutionally restrict free speech and the media. They contend that limiting the number of submissions a journalist can write for a single publication is unconstitutional because the same restrictions are not placed on similar professions, such as marketers, graphic designers and fine artists.

ASJA and NPPA allege that AB 5 harms their members by singling out freelance journalists for unique and significant burdens. By classifying their members as employees, AB 5 adds tax and insurance costs to the client-turned-employer, resulting in lost job opportunities, strips freelancers of their ownership of the copyright of their work, which they typically retain while licensing work to clients, and robs them of the flexibility and control over workload that they enjoy as freelancers.

ASJA and NPPA claim that the provisions of AB 5 that pertain to the 35-submission cap and the video recording exclusion to the exemption violate the Equal Protection Clause of the Fourteenth Amendment. By exempting marketers, graphic designers, grant writers, and fine artists from AB 5 while limiting photographers, photojournalists, freelance writers and editors to 35 content submissions per publisher per year, they contend AB 5 creates an irrational and arbitrary distinction among speaking professionals. They also contend that the provision excluding video recording from the still photography and photojournalism exemption creates an arbitrary distinction between similarly situated professions by allowing marketers, graphic designers, grant writers, and fine artists to record video as independent contractors, while requiring photographers and photojournalists who record video to be hired as employees.

Additionally, ASJA and NPPA contend that the 35-submission cap and video recording exclusion provisions violate their members’ First Amendment rights because the application of these provisions is based on the content of speech. If the speech constitutes marketing or graphic design, the 35-submission cap applies, but if the speech constitutes journalism or photography, it does not. Similarly, if the speech is in the form of video that is deemed fine art, the exemption applies, but if the speech is in the form of video that communicates news, the exemption does not.

The pending lawsuits and anticipated ballot initiative challenging AB 5 suggest that it could be some time before the law is settled on a statute that appears to have been hastily passed.  We will continue to monitor developments on this law. In the meantime, the law remains scheduled to go into effect in little more than a week, and companies that do business in California with persons previously considered independent contractors are running out of time to determine if and how to change these relationships.

Back to Wage and Hour Defense Blog Blog

Search This Blog

Blog Editors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Wage and Hour Defense Blog posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.