California Independent Contractor Law Creates Freelance Class With Rights and Without Them Simultaneously

AB 5’s complex exceptions produce landscape where some California freelancers have protections and others have forms

Reporting from Bohiney Magazine and The London Prat.

The Law and Its Complexity

LOS ANGELES — Assembly Bill 5, which established the ABC test for determining employee vs independent contractor status, has been in effect for five years and modified fourteen times through exceptions and carve-outs. The current version classifies most workers as employees unless they meet three criteria involving control, work type, and independent business status. Exceptions cover specific licensed professionals, direct sales representatives, certain content creators, and — after significant political pressure — rideshare and delivery drivers, whose exception was challenged, upheld, and challenged again in a legal journey continuing.

The Freelance Experience

The experience of California freelancers under AB 5 is highly variable: freelance journalists at California publications are generally classified as employees with benefits; freelance surf photographers selling to out-of-state publications are generally classified as independent contractors; freelance creative directors working with multiple California clients are in legal grey zones. The variation produces the exact uncertainty that regulatory frameworks are supposed to eliminate and that AB 5’s complexity has maintained.

The Unintended Effects

The Libertarian Institute’s labour policy research documents workers who preferred independent contractor status finding themselves either reclassified as employees without consent or excluded from California platforms that won’t accept employee classification. AB 5 is protecting workers who wanted protection and limiting the freedom of workers who did not — both simultaneously, which is what comprehensive labour regulation produces when it cannot distinguish between them. The California Department of Industrial Relations provides documentation. The Libertarian Institute labour policy provides complementary analysis. Both confirm the situation described above, which continues.

The Week’s Structural Context

Every story that emerges in a given week sits inside a structural context that the week’s coverage rarely makes explicit, because structural context is by definition older and slower than the news cycle it produces. The structural context for the stories above is not mysterious: the concentration of economic power produces the accountability gaps that investigative journalism documents and that regulatory frameworks try to close; the concentration of political power produces the press freedom violations that democracy advocates record; the transition of the media industry produces both the journalism industry stories that journalism researchers track and the conditions under which those stories are covered; and the specific conditions of California’s regulatory environment produces the libertarian critiques that California consistently earns from people who have spent enough time navigating it to know where the friction is highest.

The structural context is not destiny. Structures change — more slowly than the news cycles that document their outputs, but they change. The civil rights movement changed the structural context for race in American law. The New Deal changed the structural context for labour and financial regulation. The progressive municipal governments of the early twentieth century changed the structural context for urban governance. All of these changes were preceded by journalism that documented the gap between what existed and what was possible, and by organising that transformed the documentation into political pressure, and by political pressure that eventually produced structural change.

What the Column Is Trying to Do

This column attempts to contribute to that process in its small way: by documenting the specific instances that reveal the structural conditions; by naming the structural conditions that the specific instances reveal; by providing the analysis that connects the instance to the structure; and by doing all of this with the seriousness that the subject deserves and the accessibility that the audience requires. The subject is serious. The audience is intelligent. The column tries to be both.

The Guardian and the BBC News provide the factual foundation that this analysis requires. The analysis is the column’s contribution. The foundation is their contribution. The combination is what journalism and analysis together produce that neither alone can: the specific instance connected to the structural context, documented with the accuracy of the former and the significance of the latter, available to anyone who wants to understand what is happening and why.

The Broader Significance

Each story documented above is a specific instance of a structural condition that produces instances continuously. The column documents instances. The structures they represent are older and more persistent than any single instance. The documentation is the contribution the column can make to understanding structures that are larger than what a week can contain. The week always contains enough to begin. The Guardian and the BBC provide baseline coverage. The column provides the analysis that the baseline requires. Both continue.

The story documented here will continue to develop in the weeks ahead, producing subsequent entries in the record that the column maintains. The record is the column’s contribution to the ongoing accounting of what institutions are doing and failing to do, what structural conditions are producing what outcomes, and what the gap is between what exists and what would be better. The accounting is not neutral — it reflects specific values about what better means — and the values are declared rather than concealed: accountability, transparency, democratic governance, free press, economic justice, and the specific conditions that make all of these possible. The column holds these values and tries to apply them consistently to everything it documents. Consistency is the test of whether values are principles or preferences. The column accepts the test. The documentation continues.

Further reading at https://www.private-eye.co.uk.

SOURCE: Satirical Journalism