As Congress turns its attention to a fourth stimulus package to address the coronavirus crisis, Massachusetts Senator Elizabeth Warren has offered her own solution: force “gig” workers — think Uber and Lyft drivers, or Shipt shoppers — to become employees of the app-based companies that provide a platform for them to earn income. A letter to Congress from dozens of national and New York-based labor groups reinforced her case.
This will backfire and reduce economic opportunity for those who need it. I know, because it happened to me.
Warren’s advocacy follows her support of California’s controversial AB5 law, which aimed to convert independent contractors — myself included — into W2 employees. Rather than provide us stable employment and benefits, as others promised and Warren now promises, it left thousands of us without any work, period. With the “gig” sector as one of the few that’s hiring in a historically troubled economy, and with demand skyrocketing for delivery, in particular, Congress should take a skeptical view of expanding California’s disastrous approach nationally.
In the four decades since I began as a college student, I enjoyed a successful career as a freelance journalist. But on Jan. 1, California outlawed most freelance work for roughly 300 job categories — nurses, medical translators, court reporters, musicians, landscape architects, and yes, journalists. These occupations cover roughly one-third of the state’s workforce.
AB5 restricts me and other freelance journalists and photographers to 35 submissions per client and bans freelance video reporting. If I sold a 30-second video of a wildfire to a media outlet, that company could be fined a minimum of $5,000 and a maximum of $25,000, plus back taxes and wages. In comparison, the state’s fine for possession of methamphetamine is $1,000.
Understandably, many companies responded by seeking contractors in other states. Vox Media’s decision to cut hundreds of freelance writers made national headlines, but many others (myself included) have suffered a similar fate with less media attention.
Warren claims that requiring companies to turn independent contract workers around the country into full-time employees will make it so, as if by waving a magic wand. California’s experience shows this isn’t true.
Warren and other defenders of AB5 claim they were addressing the exploitation of workers who are misclassified as independent contractors and wrongly denied full wages and benefits. I’m sensitive to this concern: Time Inc. misclassified me and other journalists for years; it later paid out a multi-million-dollar settlement with the U.S. Labor Department. Misclassification laws worked then (two decades ago) and have even more teeth today — especially in states like California.
Rather than continuing to improve current law, California legislators pulled the rug out from under thousands of freelancers who were voluntarily working as contractors because it best fit their life and income needs. A 2019 study by Edelman Intelligence, Upwork, and the Freelancers Union found that 8 out of 10 independent contractors prefer to work independently. Contrary to Warren’s characterizations, over 80% of independent contractors have health insurance; 1 in 5 of us make $100,000 annually or more.
Warren looks at app-based drivers, shoppers, and other independent contractors and sees exploitation. The truth is that many freelance workers are refugees from W2 employment that didn’t provide the flexibility they needed. Nearly half of us can’t work traditional office hours because of health issues or family caregiving duties; a similar number said they wouldn’t switch to traditional, “full-time” employment for any amount of money.
Most employees cannot work where they want and when they want; they also cannot deduct the cost of home offices, essential work equipment, or the training they need to stay on top of marketplace trends. Creators (musicians, writers, photographers) give up copyright ownership of our work if we become employees. Employers rarely offer health insurance to part-time employees, and employees often can’t deduct the cost of getting their own insurance.
With my journalism career restricted (full disclosure: I’m helping lead a lawsuit to overturn the ban on freelance journalism), I’ve focused my energies on writing a book. My heart breaks for countless contractors I’ve encountered on Facebook and in person who don’t have a backup plan. If Warren were to get her way, millions of gig workers and other independent contractors would be displaced at a time when the supply and demand for their services — in the grocery industry in particular — is at a historic high.
JoBeth McDaniel is a freelance journalist based in California.
