If you are a freelancer.
If you do piece work.
If you in any way have multiple outlets that pay you for the work you do.
Time to sit up, and pay attention.
State governments, some with good intentions and some without, are coming for your jobs. And that includes mine. Of all the things I never thought I’d have to think about was the future of my ability to earn a living.
I’ve been a freelancer since I was in college; even when I had full-time jobs, I took on freelance assignments for extra income and because you never knew where the next story might come from — or the next job. I’ve been a full-time freelancer since 2008, when my last job laid me off. It’s worked. It wasn’t always easy, but I have cobbled together a career that I actually like better than having to commute into someone else’s office every day to do.
Then this new trend in state legislation came to my attention. Toward the end of last year, California passed AB5, a rule that tries to redefine what an employee is. There’s a need for such a thing; gig work has been growing for years thanks to companies like Lyft and Uber; for many years we’ve had big corporations who have a huge workforce under them – but give them just shy of the work hours needed to be considered part-time employees, to avoid having to pay out benefits. We’ve heard these stories for years: Walmart. Amazon. The list goes on.
Late-stage capitalism, plus the empowered sense corporations have had thanks to the Citizens United ruling, has brought us to this: Companies are not there for you. They are there for their shareholders. They will do the bare minimum to keep you on, and if they can find a loophole to keep you out of the golden circle of benefits, they will do it. We’ve let this slide. On top of that, health care has become a lightning rod that the federal government is unable to resolve, apparently, so states are looking to take that on.
That, in part, is how we got to AB5. The thing is, it – like other laws being considered or passed in other states – is too broad. It aims at workers for ride services, and hits people who freelance. At its core, it tells freelancers who live in California that they can’t contribute more than 35 individual articles (a random number chosen by a legislator, not a number reached after careful research and deliberation) per year to any one company. More than that, and they have to consider you an employee.
When that law passed, I emailed my editors in California, but since it applies to where the writer lives, I didn’t speak up. It seemed like an overly-cautious California progressive move – and I mostly applaud that stuff – but wasn’t going to affect me. Then I heard New Jersey was considering a law like it. Then, on Sunday, I learned such a law has been proposed in the New York Senate.
And that brought it home, literally. Senate Bill S6699A wants to amend the Labor Law to redefine who can work for a company.
“The purpose of this bill is to reclassify more workers as employees rather than independent contractors in order for them to receive benefits such as healthcare and retirement.”
So says the bill.
There are three key elements that they want to insert into Labor Law to achieve this redefinition. “If the hiring entity does not demonstrate all three aforementioned conditions, the person providing the services or labor is considered an employee rather than an independent contractor,” says the proposed legislation. These three conditions are:
- The individual is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for performance of the work and in fact;
- The individual performs work that is outside the usual course of the hiring entity’s business;
- The individual is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
The key provision seems to be No. 2: Basically, if you write for a publication (as I do) that publishes other people’s writings, you are engaging in work that is typical of that company’s business. If those publications hire you to paint their walls, that is not typical.
As I told my local senator in an email and a tweet, I am empathetic to the goals of the bill. But it catches people in a net that is far too broad. I can’t imagine a) the outlets I write for deciding to hire me as an employee just to keep me around – a part-time employee, mind; b) that if one actually did say “yeah, be a part time employee with us” that any of the others would think that’s a good idea.
If the purpose of this bill is to keep people from having to sponge off the state because they are employed but under-compensated, this achieves the opposite effect for me (and many others, I’m sure) at least. When I freelanced and wasn’t married, I got health insurance through the Freelancer’s Union. When I got married, I was able to join my husband’s health insurance. I do not need “help” in this area. In fact, this bill will likely reduce my income, leaving me open to needing that state/governmental help I do not currently need. It achieves the opposite effect.
I do understand that others could use this kind of assistance. But a) do you really think this law will make companies step up and hire across the board? Or will they look for another loophole and; b) if you destroy the incomes of hundreds of thousands in an effort to assist an equal or lesser number, that is called running backward or running in place. I’m not saying this has to be “are there more Lyft drivers than freelancer writers” – I’m just saying the law needs to be more specific. Also, I really doubt it’s going to actually help those it is intended to assist.
In addition, while I I don’t imagine that the future of the First Amendment rests on my shoulders, putting independent journalists out of work does not seem to square with our country’s goal of having a free press. Consolidating voices further within the already-corporatized media structure seems a further step backward. My freedom to write for multiple outlets means no one of them holds a sword over my head – as a freelance writer, I am freer because I have many “masters.”
With all of this said, I go back to my first statements: If you freelance. If you do part-time work. If you do piece work. If you are part of the gig economy: You must speak up. You must reach out to your senators or assemblypeople, your government and tell them to get their facts right before forging forward with a bill that will damage or ruin any number of careers. This discussion needs a scalpel. What these laws are bringing to it is a hatchet.
And if you think it’s not coming for your state, or your job – think again. This is about all of us, in the long run.
Here are some more links to help you get informed and get active:
NY Freelancers Concerned about Senate Bill S6699A (Private Facebook group but just apply to get in)
Do you have thoughts? Answers? Advice? Throw it in the comments section below. We need all hands on deck!
New language added to the NY State Budget for 2020. It’s wonky, but read it through and you can see that it ties piecework/freelance to digital companies specifically. (Note that the legislators neatly exempt themselves at the end of the “44” paragraph.)
2021 NEW YORK STATE EXECUTIVE BUDGET
TRANSPORTATION, ECONOMIC DEVELOPMENT AND
ARTICLE VII LEGISLATION
In particular see:
44. Classification of digital marketplace workers. a. For purposes of this section, “digital marketplace company” means an organization, including, but not limited to a corporation, limited liability company, partnership, sole proprietor, or any other entity, that operates a website or smartphone application, or both, that customers use to purchase, schedule and/or otherwise arrange services including, but not limited to repair, maintenance, construction, painting, assembly, cleaning, laundry, housekeeping, delivery, transportation, cooking, tutoring, massage, acupuncture, babysitting, home care, healthcare, first aid, companionship, or instruction, and where such company utilizes one or more individuals to provide such services. Such organization: (i) establishes the gross amounts earned by the individual providing such services; (ii) establishes the amounts charged to the consumer; (iii) collects payment from the consumer; (iv) pays the individual; or any combination of the foregoing actions; and the individual may provide such services in the name of the individual, or in the name of a business, or as a separate business entity, and without regard the consumer of such personal services may be an individual, business, other entity, or any combination thereof. Provided, however, no governmental entity shall be considered a digital marketplace company.
b. (1) The commissioner is hereby authorized to promulgate regulations determining the appropriate classification of individuals providing services for a digital marketplace company as defined in subdivision a of this section and such regulations shall have the force and effect of law.
(2) Such regulations shall set forth the appropriate standard for determination of whether a worker should be classified as an employee or an independent contractor, and shall consider the following conditions: (i) whether the individual is free from the control and direction of the digital marketplace company in connection with the performance of the work; (ii) whether the individual performs work that is outside the usual course of the digital marketplace company’s business; and (iii) whether the individual is customarily engaged in an independently established trade, occupation, profession or business that is similar to the service at issue.
More as the situation develops.
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