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California Freelance Writers and Photographers Challenge the Constitutionality of AB 5

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 (“ASJA”) and Authors 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.

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About this Author

Vanessa K. Manolatou Associate Employment, Labor & Workforce Management practice,
Associate

VANESSA K. MANOLATOU is an Associate in the Employment, Labor & Workforce Management practice, in the Los Angeles office of Epstein Becker Green. She has extensive experience providing representation to employers of all sizes—from local companies to national corporations—in many industries, including retail, hospitality, real estate, health care, technology, insurance, education, construction, labor organization, nonprofit organizations, and various others.

Ms. Manolatou’s experience includes:

  • Representing employers in a broad range of employment...
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