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Freelancer Groups Can’t Halt New California Labor Law (1)

Jan. 6, 2020, 1:44 PM

Freelance journalists and photographers can’t halt California’s new worker classification law, a federal judge ruled, denying a request to block enforcement against the industry and invalidate certain provisions.

Judge Philip S. Gutierrez denied the temporary restraining order that two associations representing freelance writers, news photographers, and visual journalists requested Dec. 31. The groups say California Assembly Bill 5 harms journalists’ ability to continue working as freelancers and violates their First Amendment rights.

Freelance journalists were among the industry groups that sued over the measure, which creates rigid guidelines for employers that want to classify workers as independent contractors. Journalists have been vocal about how the law could affect their livelihoods. Some news organizations ended relationships with contractors in the state before the law took effect, including Vox.

The freelance journalists’ legal challenge argues that the law restricts free speech and the news media by effectively limiting the number of articles a contract journalist can write for the same publication each year. Under the law, any freelance writer who writes more than 35 articles for a publication must be classified an employee, rather than as an independent contractor.

A.B. 5 codifies a three-part worker-classification test that the California Supreme Court adopted in 2018’s Dynamex Operations West, Inc. v. Superior Court. The “ABC test” replaced a more flexible test and lays out three specific criteria employers must meet in order to classify its workers as contractors: Companies must show A) that the workers have freedom from control over how to perform the services provided; B) that the services are outside the business’ normal variety of work; and C) that the workers are engaged in an independently established role. Previously, the classification test relied on a balance of factors that determined how much control the company had over the task performed.

The test has been seen as a threat to gig economy companies, in particular. Employees, as opposed to contractors, are entitled to benefits such as minimum wage, overtime, and health care. Several other groups also have challenged A.B. 5, including Uber Technologies, Postmates, Inc., and a California trucking association.

The trucking industry, which is arguing it should be exempt thanks to a federal law, was granted a temporary restraining order, and a Jan. 13 hearing will be held on the injunction. The gig economy companies didn’t ask for emergency relief. The trucking industry, in its own lawsuit, says the measure would make it “impractical if not impossible” to use contractors for services across state lines.

In the journalists’ case, the American Society of Journalists and Authors Inc. and the National Press Photographers Association haven’t established that they’re entitled to such extraordinary relief, Gutierrez said in a Jan. 3 ruling. In fact, the ASJA and NPAA’s unexplained delay in seeking injunctive relief against A.B. 5 “belies their claim that there is an emergency,” the court said.

“Freelance journalists in California are losing work each day A.B. 5 remains in effect, so we are disappointed the court did not issue an emergency TRO,” said Jim Manley with the Pacific Legal Foundation, who represents the groups. “The court wanted to hold a full hearing before deciding on the injunction, which is understandable given the gravity of the issues.”

The ASJA and NPPA sued California Attorney General Xavier Becerra (D) in U.S. District Court for the Central District of California. The lawsuit, filed Dec. 17, requested a preliminary injunction against A.B. 5 and its “professional services” exemption, which allows certain other professionals to keep working as freelancers. Becerra opposed the motion Jan. 2.

The California Department of Justice represents the state. An attorney with the state didn’t immediately respond to request for comment. A hearing is set in this case for March 9 over the motion for preliminary injunction.

The case is Am. Soc’y of Journalists and Authors, Inc. v. Becerra, C.D. Cal., No. 19-cv-10645, 1/3/20.

To contact the reporters on this story: Kathleen Dailey at kdailey@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com