, 21 tweets, 6 min read
A thread to clarify some confusion about #AB5 and Freelancing Journalists:

(1) No one single law or test makes you an employee or independent contractor. For example, you can be an employee for state minimum wage laws, but an independent contractor for the NLRA. 1/
(2) In California, state employment protections are embodied in the Labor Code (leginfo.legislature.ca.gov/faces/codesTOC…) and the Unemployment Insurance Code (leginfo.legislature.ca.gov/faces/codesTOC…) 2/
(3) Prior to the passage of #AB5, there were different tests for different laws. For example, after the Dynamex decision, employment status for wage orders were analyzed under the ABC test while employment status for unemployment insurance was analyzed under the Borello test 3/
(4) #AB5 standardized the test for employment status across CA employment laws. You can read more about the test itself here: en.wikipedia.org/wiki/Californi… . The bill makes it easier for hiring entities & workers to understand when protections are owed and when they are not. 4/
(5) But the confusion does not end b/c many workers are carved out of the labor code. Some of those exempt from overtime laws are listed: dir.ca.gov/dlse/faq_overt….
5/
(6) There is a PROFESSIONAL EXEMPTION for wage & hour laws. In order to fall into this exemption, a worker must be a) making 2x the min wage in a 40 hr week, b) be able to exercise indep judgement, & c) be creating work that is original & creative in nature. 6/
(7) You can read specifics for the professional exemption here: dir.ca.gov/dlse/Glossary.… 7/
(8) Freelance journalists who just report the facts are likely not engaged in "creative" work and thus are not exempt from CA wage & hour laws. BUT... 8/
(9) Freelance journalists who do MORE than just collect & record information--whose work contributes some unique interpretation--are likely EXEMPT. You can read the fed guidelines here which are useful to understand the CA exemption distinction, but are for the FLSA. 9/
(10) #AB5 actually EXPANDED the exemption--it didn't shrink it. Now, for wage & hour purposes (and other CA employment laws), even if you don't meet the "professional exemption," you can be exempt as long as you produce less than 35 pieces for the hiring entity. 10/
(11) The ABC test embodied in #AB5 came out of the CA Supreme Court's Dynamex decision--and it codified that decision and standardized the test across CA employment laws. But Dynamex (not #AB5) is what originally applied the ABC test to employee status for wage orders. 11/
(12) Prior to the ABC test, the applicable test for wage & hr purposes in CA was the BORELLO test. It was a subjective test that required a decision maker examine how much control a putative employer had over a worker to determine the applicability of some employment laws... 12/
(13) Under Borello, "Control" was examined via a multi-factor test. Most freelance journalists who do not meet the professional exemption WERE EMPLOYEES for CA wage & hour purposes under the previous test. 13/
(14) If you want to understand the previous analysis, please do look at this old fact sheet: dir.ca.gov/dlse/Independe… 14/
(15) Before #AB5, media outlets who hired freelance journalists who did not meet the professional exemption (see above for def) were taking great risk--someone could sue & they would owe back wages & penalties. 15/
(16) The media outlets can continue to take these risks, but not all will. This has caused understandable fear among freelance journalists. But many of these journalists are EXEMPT (see above test). 16/
(17) All of this is to say: freelance journalists across the board are not in that different of a position than they were before. Those not engaged in creative work were already misclassified as independent contractors. If anything #AB5 broadens the scope of the exemptions 17/
(18) And finally, please stop making over broad, hysterical legal claims about how employment regulations violate the US constitution. They don't...unless we want them to. That is to say, the law is malleable & reflects ideological shifts. In the Lochner era, the S. Ct. 18/
(19) found that an employment regs violated the Constitution. Those decisions were eventually overturned both b/c the Ct. found they upheld particular economic theories which were not embedded in the Constitution & b/c of the widespread economic strife...19/
(20) Let's not regurgitate those--frankly crazy--contractual arguments from the late 19th C. Only the powerful benefit from hysteria and misinformation around simple employment regulations. 20/
(21) Lastly, this is all I have to say about this on Twitter. This is the law. And the constant misinformation is exhausting. 21/END.
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