Opinion: California is making the writing life even harder

I never thought the State of California would make it even harder for writers to make a living, but here we are.

To be fair, that’s not the Legislature’s intention. Assemblywoman Lorena Gonzalez (D-San Diego) drafted Assembly Bill 5 to help workers victimized by the gig economy. She consulted with writers’ organizations regarding its effect on writers. She deserves a lot of credit for her efforts. But even before AB 5 takes effect on Jan. 1, 2020, the marketplace is making it unworkable for many freelancers.

The new law will require a company to hire as an employee any writer who contributes more than 35 “submissions” a year to that publication. (It applies to editorial cartoonists and photographers as well.) It’s meant to stop media companies from firing full-time staff and replacing them with the work of freelancers, without paying for benefits or payroll taxes. But it runs into two problems. The first is the changing nature of the writing marketplace; the second is the diversity of writers’ careers.

If you’re an Uber driver, you can’t operate a vehicle from across the continent (not yet, at least). But writing exists in a national marketplace, and most freelance writers can work remotely from wherever they live. Since local stories make up only a small subset of content that is in demand, publishers both in and outside California may well avoid buying work from California-based freelancers. Many freelancers say this is already happening.

AB 5 was written to minimize these effects; for example, multiple stories about the same event may count as a single “submission.” But the market doesn’t care. Facing ever narrower margins, media companies prefer to avoid the time and cost of parsing the law and any risk of running afoul of it. They can turn to the many good writers who live in the other 49 states.

It’s commonly understood that an out-of-state employer must abide by labor laws where the worker resides. It would probably take a court case to settle the jurisdictional issues in AB 5. Would a New York or Washington-based media company risk litigation in order to hire a California freelancer? Unlikely.

The other problem with the law is that it doesn’t sufficiently take into account the variety of categories of writers, and how they overlap. The assumption is that we all want a full-time job with an employer. In some cases, that’s true. Gonzalez, a former labor organizer, told the Hollywood Reporter that she was alarmed by the attack on journalists’ unions with many reporters having been sacked unwillingly. A lot of freelancers would love to be staff writers.

But writing careers comprise a spectrum. Book authors like myself want to put most of our time into work on our own projects. We retain copyright over our work and the freedom to express our views through our creations.

Of course, only rarely does individual creation pay all the bills. I have two Pulitzer Prizes but no New York Times bestsellers. I, like others, write on a freelance basis as I attempt to put together income from a variety of sources while retaining my independence. Crimping even a minor revenue stream hurts the ability to create.

Many authors I know have had regular gigs writing columns or reviews for daily newspapers. No, they weren’t paid enough, but trying to force their papers to hire them wouldn’t help. The San Francisco Chronicle, for example, is not about to create a new position for a full-time reviewer, since it has laid off its book editor.

For many years after I started to write books full-time, I supplemented my income by writing catalog and jacket-flap copy for a publisher, often submitting as many as 60 pieces a year. I don’t know if I could have finished my first two books if AB 5 had come along and frightened away that client. Does the new law apply to that kind of marketing work? It might, unless the work “depends primarily on the invention, imagination, or talent of the employee,” to quote the text of the law. A hard-pressed manager with a limited budget is unlikely to risk a court case to test this question.

And what if the law worked as intended, and I were offered a job? No thank you. I had quit my last job in order to write my own books and I would not want to go back to regular employment in marketing and advertising.

It’s a tough time for writers. In a recent member survey, the Authors Guild found that incomes have declined sharply. The digital platform titans of Silicon Valley have remade the creative marketplace for their own profit, slashing pay for artists and writers as they harvest advertising and streaming revenue. I believe AB 5 is meant to help, but it’s not the solution. No matter how precisely drafted, a state-based intervention may simply push our clients to go elsewhere.

Please, revise AB 5 before it hurts writers who are already struggling.

T.J. Stiles received the 2016 Pulitzer Prize for History, the 2010 Pulitzer Prize for Biography and the 2009 National Book Award for Nonfiction. He lives in Berkeley.