Controversial California Law Assembly Bill 5 (AB 5) has been revised to include an exemption for freelancers, addressing ample criticism that resulted in a lawsuit from the NPPA in December 2019. With this exemption in place, California-based freelance photographers, writers, editors, illustrators and multiple others are no longer limited by the 35 submissions per client/year restriction.
The issue began in early 2018 when California — in an effort to protect workers from being exploited — established the ‘ABC’ test legal standard under its Dynamex decision. With this, an employer was to determine a worker’s employment classification using the ‘ABC’ test, only labeling them as an independent contractor (freelancer) if the following conditions were met:
- A: The individual is free from the control and direction of the hiring company
- B: The individual performs work that is outside of the hiring company’s usual course of business
- C: The individual has their own independently established trade, occupation or business performing that work.
The idea was that by establishing these conditions, the state could ensure that workers who were historically unfairly labeled as independent contractors would instead get the benefits and protections that come with employment in California, including things like a minimum hourly wage, overtime, sick pay and similar.
Soon after, California passed controversial law Assembly Bill 5 to create a ‘consistent definition for employment,’ among other things. Under AB 5, it was established that writers and other ‘multimedia professionals’ like still photographers were limited to providing up to 35 pieces of content per client every year. Beyond that amount, AB 5 required the ABC test to apply or the workers to be labeled as employees.
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This introduced a number of concerns, many of which were outlined by the National Press Photographers Association amid its lawsuit against AB 5 filed back in December 2019. The NPPA pointed out that by forcing still photographer freelancers to work as the client’s employee, the photographers would lose the copyrights to their images.
As well, the limitation on freelance assignments per client per year severely impacted many workers’ income, impacting everyone from professionals who were freelancing on the side to retirees who freelanced for extra income. Addressing that is Assembly Bill 2257, which was recently signed into law.
Among a number of other things, AB 2257 removes the ABC test requirement from freelancers who submit more than 35 pieces of content to the same client, including still photographers. Instead, California hiring entities must satisfy the following three conditions called the Borello test to classify a worker as an independent contractor:
- 1: The individual provides services under a contract that specifies their rate of pay, a defined time by which they must receive their payment, and the individual’s intellectual property rights to the work.
- 2: The individual does not primarily provide services at the hiring entity’s business location.
- 3: The hiring entity does not hire the individual to provide services that would directly replace an existing employee who does the same work at the same volume, or prevent the individual from providing services to more than one hiring entity.
The California State Assembly further notes that AB 2257:
…outlines similar criteria for a still photographer, photojournalist, videographer, or photo editor that provide services under a contract. The bill additionally specifies that a still photographer, photojournalist, videographer, or photo editor providing services to a digital content aggregator is also governed by the Borello test.
The revision aims to protect workers who should be classified as employees from being exploited by independent contractor status but also protects the right of freelancers to continue working as independent contractors and enjoying the related benefits.
