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Column: Employers blame gig worker law AB 5 for their own cheapness

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Freelance writers in California who have been seeing their publishing opportunities sharply cut back or even eliminated by publishers are blaming the state’s new gig economy law, which goes into effect on New Year’s Day.

No one can deny these workers are being put through the wringer. For many, freelance assignments are their principal source of income.

But they’re blaming the wrong target. The source of their troubles isn’t the gig economy law, known as AB 5, which says that a firm that publishes more than 35 submissions from a single writer during the year must treat that writer as an employee rather than an independent contractor.

The right place to lay blame is with the employers, some of which are citing AB 5 as an excuse to do what comes naturally — underpaying their workers and avoiding their responsibilities as employers to provide them with such benefits as unemployment and workers’ compensation coverage, sick days and family leave, as well as the opportunity for union organizing.

AB 5 adds costs their client-turned-employer will have to pay, such as unemployment taxes, workers’ compensation taxes, state disability insurance, paid family leave and sick leave.

Freelance writers and editors lawsuit to block AB 5

Take Vox Media, which announced on Monday that it was cutting off more than California 200 writers who wrote “thousands of blog posts” in 2019 for its SB Nation sports website. The action, Vox said, is “necessary in light of California’s new independent contractor law, which … restricts contractors from producing more than 35 written content ‘submissions’ per year.”

Vox’s statement didn’t happen to mention a couple of federal class-action cases that accuse the company of systematically shortchanging writers and editors by classifying them as “contractors” rather than “employees” — exactly the kind of behavior that AB 5 was designed to eradicate. Vox has denied the assertions. We’ve asked the company for further comment, but haven’t heard back.

Associations of freelance writers and news photographers sued the state on Tuesday to block the law as it applies to those workers. Before delving more deeply into the lawsuit and the Vox situation, let’s take a look at what AB 5 actually does — or, perhaps more pertinently, what it doesn’t do. That’s important, because its provisions have been widely misrepresented, including by employers who cited it.

AB 5 was an outgrowth of the California Supreme Court’s so-called Dynamex decision of 2018, which tightened the rules for when a worker must be considered a company’s employee rather than an independent contractor. The law expanded the court ruling’s reach beyond wage rules to other state labor rules.

  • AB 5 does not limit freelance writers to 35 submissions per client per year.
  • AB 5 does not require that writers who publish more than 35 submissions be given full-time jobs by their publishers.
  • AB 5 does not prohibit bringing on freelancers as part-time employees and allowing them to continue making their own hours.

All those things may happen to freelance writers in California, but that’s the result of voluntary decisions by their publishers, quite possibly because they don’t want to pay the writers more by complying with minimum-wage laws and overtime rules.

The sponsor of AB 5, Assemblywoman Lorena Gonzalez (D-San Diego), has explained that under the Dynamex ruling, freelance writers would have to be designated employees if they wrote even one published piece. In her view, the 35-piece standard is actually an exemption that gives writers a bit of breathing room before their publishers have to start paying them employee benefits.

Gonzalez has indicated that she’s open to adjusting the exemption when the Legislature returns to Sacramento in January, but not to a complete exemption for writers and photographers.

The prime targets of AB 5 are Uber, Lyft, Doordash and other users of freelance drivers and delivery personnel, which have based their business models on avoiding the payment of workplace benefits and sticking the workers with their own expenses, including gas, insurance and maintenance. Those companies have mounted a ballot-box challenge to the law.

(After the Dynamex ruling, The Times transitioned about 30 freelancers to full-time staff positions. The recently-ratified union contract at The Times places limits on the further use of freelancers, chiefly to discourage its turning to non-union labor at the expense of union employees.)

The implicit justification for publishers using freelancers rather than employees to provide their content is that they operate on a shoestring and can’t afford to pay up for articles, editing and photography.

That brings us back to Vox Media. Its announcement that SB Nation is cutting off its 200 California freelancers describes the decision as “bittersweet” and invites the freelancers to apply for a handful of full- and part-time positions created to take up the slack.

The privately-backed company doesn’t necessarily fit the definition of a shoestring operation. It operates 20 information websites, including the news site Vox, the tech site Recode and the food site Eater. In September it merged with the publisher of New York Magazine, creating what it called “the leading independent modern media company.”

Vox Media has been well-financed, with its most recent infusion of capital, a $200-million investment by NBCUniversal, arriving in 2015. That investment raised the firm’s valuation to more than $1 billion, according to its own Recode site.

In 2017, lawsuits filed by editors at SB Nation described a business model that involved working editors and writers unrelentingly for low pay. Cheryl Bradley, who had signed on in 2013 to help run SB Nation’s site devoted to the Colorado Avalanche team of the National Hockey League, asserted that she regularly published five or six articles a week while also managing its Facebook and Twitter accounts and live-tweeting during games. She regularly worked 30 to 40 hours per week, and sometimes 50 hours.

For this, she says, she was paid $125 a month.

Bradley’s lawsuit has been consolidated in federal court in Washington with one filed by other freelancers asserting similar claims. Vox Media denied the substantive allegations, but federal Judge Rosemary M. Collyer turned down its bid to have the lawsuits thrown out of court and has certified a class of more than 100 current and former SB Nation “site managers and managing editors,” elevated titles for people treated as independent contractors rather than employees.

In the lawsuit filed Tuesday in federal court in Los Angeles, the freelance writers and photographers organizations are represented by the Pacific Legal Foundation. As my colleague Suhauna Hussain reported Tuesday, the foundation, which was founded in 1973, has “a history of defending employer interests, among other libertarian causes. Its initial backing came from the Pittsburgh billionaire Richard Mellon Scaife, one of the most rabid right-wingers of his time.

Since then it’s been associated with campaigns challenging anti-smoking laws and environmental regulations.

Randy Dotinga, a California freelance writer who is a board member and former president of the American Society of Journalists and Authors, said the organization reached out to several groups in search of legal representation, and chose the foundation because it “has a record of 1st Amendment advocacy.”

The foundation’s disdain for government regulations, as it happens, oozes out from between the lines of the lawsuit. It asserts that for freelancers “AB 5 adds costs their client-turned-employer will have to pay, such as unemployment taxes, workers’ compensation taxes, state disability insurance, paid family leave and sick leave.”

The lawsuit implies that these are bad things. But are they? It’s a safe bet that a laid-off writer will appreciate having unemployment coverage, an injured photographer workers’ compensation, a disabled editor disability insurance and anyone starting a family or falling ill family and sick leave.

If California’s freelance writers and photographers are seeking an explanation for why they’re losing assignments, it’s not because AB 5 puts limits on what they can do, but because their own employers are looking for a world where they can avoid providing these basic benefits to their content providers and keep the profits from the labor for themselves. And isn’t that what AB 5 is all about?



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Gig Workers United launches new campaign to unionize app-based delivery jobs

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One year after the historic ruling in Ontario that Foodora couriers are dependent contractors, organizers in the Greater Toronto Area are setting their sights on legislative change to improve gig workers’ working conditions.

Announced today, the Foodsters United campaign has been relaunched as Gig Workers United. The name change also comes with a broadened scope, as organizers seek to support all app-based delivery workers in the GTA.

First launched in summer 2019, the Foodsters United campaign fought to unionize Foodora couriers in the GTA with the Canadian Union of Postal Workers. Along the way, it brought about the Ontario Labour Relations Board’s landmark decision in February 2020 that Foodora couriers were dependent — not independent — contractors, which affirmed their right to unionization.

“Legislation has not kept up with the pace of technological change.”

But that win was bittersweet, as Foodora pulled out of Canada three months later. The company cited profitability issues, despite posting surging first-quarter revenues in 2020.

Its parent company, Delivery Hero, subsequently agreed to a $3.46-million settlement with former Foodora couriers in Canada.

“The Foodsters have broken many barriers to become the first app-based workers in Canada to form a union, but the fight doesn’t stop here,” said Jan Simpson, national president of CUPW, in today’s press conference.

Supported by CUPW, Gig Workers United is calling for livable wages, enforcement of workers’ rights and health and safety support. The key, organizers said, is changing labour laws to stop worker misclassification.

“Legislation has not kept up with the pace of technological change,” said Brice Sopher, an organizer and courier with Uber Eats, at the press conference.

“It’s time that … our politicians wake up and make those changes and address them now because an increasing segment of the population is going to be subject to this situation. So if we don’t stop it now, then we’re going to have a much more impoverished population.”

Organizers added that the COVID-19 pandemic has increased the importance of this call for change.
Narada Kiondo, a bicycle courier with a number of food delivery apps, said at the press conference that besides facing a higher risk of infection as a frontline worker, couriers often don’t have access to washrooms. The job is also physically taxing, making all paid sick days important for gig workers, organizers said.

With workplaces contributing to the spread of COVID-19, there have been calls for Ontario to provide paid sick days. But the Doug Ford government has repeatedly put the onus on the federal government, despite federal employment minister Carla Qualtrough saying that a provincial program would not duplicate what Ottawa currently offers.

“We should all be demanding that we be paid better.”

At the same time, some couriers such as those with Uber Eats said they have faced a gradual but significant base-pay cut over the past year, which could go as low as $3.99 per trip. Uber previously told The Canadian Press that the change was made to “better reflect each trip’s total time, effort and distance and include travel to the restaurant.” The company said couriers could turn down trips with prices that are too low for them.

“It’s a major slap in the face for myself and all the gig workers out there who are putting their lives at risk and their health at risk delivering food and groceries while everyone else is being told to stay at home,” said Kiondo.

When asked about the idea of basic income, organizers said it would help on a day-to-day level when coupled with paid sick days. But they view it as a stopgap measure.

“[The industry] is exploitive and extractive,” said Arash Manouchehrian, a delivery courier, at the press conference. “We should all be demanding that we be paid better.”

With its relaunch today, the Gig Workers United campaign coincides with a quickly growing organizing effort around the world by gig workers. For instance, the U.K.’s Supreme Court recently ruled that Uber drivers are workers instead of self-employed contractors. And while the campaign’s current focus is on the GTA, organizers said their ambition is bigger.

“This is an industry problem and it’s a national problem,” said Sopher. “So the scope is ultimately to change the industry and to improve lives for all gig workers going forward. That is our aspiration.”



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Biden directive expands jobless aid to self-employed, gig workers and more

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Unemployed Americans who have turned down job offers because they feared their prospective employers weren’t providing sufficient protection from the coronavirus would qualify for jobless aid under a directive the Labor Department issued Thursday.

The measure would also expand a federal unemployment benefits program, established in last spring’s economic relief package, to cover workers who have lost hours or who were laid off because of the pandemic. It would also cover school employees who lose jobs or work hours because of school closings.

The federal program, known as Pandemic Unemployment Assistance, made the self-employed and gig workers eligible for jobless aid for the first time.

“Until now, unemployment insurance benefits during the pandemic have been too scattered and too uncertain,” said Patricia Smith, senior adviser to the labor secretary. “That begins to change today, with many more workers now eligible for unemployment insurance benefits.”

Speaking to reporters, department officials declined to estimate how many Americans would now become newly eligible for jobless benefits.

The benefits will be made retroactive, officials said. People who applied for unemployment benefits after Dec. 27 can receive retroactive payments back to Dec. 6. Those who applied before then and were turned down can receive retroactive payments dating back to when they first applied.

With unemployed Americans now receiving a $300 weekly federal payment on top of state benefits that average about $320 a week, the retroactive aid could result in significant lump sum payments. The department estimates that states won’t be able to update their jobless benefit systems to include the new criteria until late March, which could mean that the first payments would amount to about four months of benefits.

Workers whose employers have closed because of the pandemic are already eligible to receive jobless aid from the federal program. But workers who were laid off even as their company remained open, such as waiters at a restaurant that stayed open for delivery, weren’t eligible. This directive will now cover those workers, the Labor Department said.

For the unemployed who have turned down jobs out of concern over the coronavirus, applicants will have to state under penalty of perjury that their prospective employer wasn’t meeting state or local guidelines on mask-wearing or personal protective equipment, said Suzi Levine, a deputy assistant labor secretary.

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App-based Delivery Workers of Toronto Unite to Fix the Gig Economy

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TORONTO, Feb. 25, 2021 /CNW/ – The Gig Workers United campaign launched today with a bold scope and agenda for change. Delivery workers say the status quo is simply unsafe and unliveable for those whose jobs are controlled by apps. The workers have come together to call on employers and legislators to make fundamental changes.

“We have to stand up for ourselves – the streets don’t look out for us, the apps don’t look out for us, so we’re looking out for each other and collectively calling out a bad business model,” says Narada Kiondo, one of the courier spokespersons. “The way it is just can’t continue – if the gig economy is going to work for our society than it can’t be based on squeezing delivery workers and restaurants for profit, and dodging our labour standards. And we’re going to persist, and we’ll win, because our bodies and our livelihoods are on the line.”

The roots of this struggle are in experiences including the successes of Justice for Foodora Couriers, which showed over the last two years that collective action in the gig economy is possible, that victories are there to be won, and that the organizing campaign itself makes a real difference in workers’ lives. One year ago, the couriers won the legal right to join a union, and the vast majority voted yes.

Foodora, the employer that was the target of that struggle, is no longer operating in Canada, so the workers have broadened their scope in a new drive to organize delivery workers for all the apps. Working conditions, health issues and risks are common, and many couriers work for multiple apps. Now there is a common home for them to work collectively on their demands.

Jan Simpson, National President, spoke about how CUPW has welcomed the delivery workers into the organization: “The couriers have shown that traditional union organizing is possible in this space. But they’ve gone farther than that, with community-organizing tactics and collective mutual aid. They’ve formed a worker-led organization that we’re proud to support because their fresh energy and ideas are what it takes to improve working conditions and reject silicon valley’s model of exploitation.”

“Our demands are reasonable but our vision is big,” says Arash Manouchehrian, another courier. “We need liveable wages, and transparency on wages and scheduling. We need health and safety protections, we need bathroom access, warm-ups, breaks, all the things that most of our society expects as basics for all workers. We have rights, and it’s up to us to assert those rights until we get the system fixed.”

SOURCE Canadian Union of Postal Workers

For further information: please contact CUPW communications at [email protected] or 613-882-2742

Related Links

www.cupw-sttp.org

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