An Open Letter to Sen. Elizabeth Warren Regarding #AB5

Hey Liz,

You know you’re my girl, right? We have some minor quibbles. I prefer a public option for healthcare, similar to what was originally proposed by President Obama, to straight-up Medicare for All. I’m mostly cool with the whole wealth tax thing.

But I’m not super-stoked about your support of AB5, which was recently passed in California. I know you’re on a quest to save capitalism from itself, and I know that gig economy workers need protection. Especially in today’s world, where wages for most regular folks have remained mostly stagnant in the face of increased productivity and huge increases for those at the top.

We live in a time where, for many people, one job isn’t enough and a side gig can help make ends meet. It’s ridiculous that a large swath of the population can’t work 40 hours a week in our country and be able to afford the basics. Gig workers, particularly those involved with rideshares and deliveries, need more protection.

Many of these folks are working these gigs as second jobs and have little choice in the matter. They have to accept what they’re given.

While I applaud efforts to give more rights to gig economy workers, at the same time I’m a bit miffed. See, there are some exemptions to AB5, for attorneys and real estate agents and the like. Freelance writers, though, don’t warrant an exception to the rules. And this is the point at which I really, really hope AB5 doesn’t become a true model for the law of the land.

The Strange Place Freelancers Have in the Gig Economy

Freelancers occupy a rather strange place in the gig economy. What we do could be considered gigging. But at the same time, we also have a lot more freedom than many other gig workers. When you drive for a rideshare company, your car has to meet certain standards. There’s a whole list of requirements you have to meet. There are other ways that door delivery companies and others dictate how you do your work.

As a freelancer, though, I’m just given a deadline and I can work when and how I want, using the equipment I want. It doesn’t matter to a client if I have an old computer. I just need to turn in the work, like I’m contracted to do. One of my clients has a regular freelancer call. I don’t attend it because they can’t make me. I’m not an employee. I still get assignments from them and make money, though.

With some of these other gig economy hustles, though, there’s less control. If you turn down an “assignment,” you might not get one next time. You’re ruled by an algorithm. And it would be good if these workers could organize for collective bargaining, even if they aren’t classified as employees.

There’s even a writer’s union. Being able to organize is important. But forcing an employee classification on gig workers and freelancers might not be the best way to go — especially since some gig-type jobs come with more control than others.

The Big Issue with AB5 — Not Everyone Wants to be an Employee

In the last 15 years, I have spent exactly two of those years as an employee. I accepted a remote job at a startup because it offered peace of mind and health insurance at a time when I felt like I needed it.

Everyone who knew me was shocked that I’d go W-2. But, my divorce had been final for about year and, even though I had always been the primary breadwinner in the marriage, I had underestimated the mental toll not having a fallback income would take. Until it was gone, I didn’t realize how much comfort it was to have someone else contributing to the household finances — even if it was just barely enough to live on.

So, after a year, I took a W-2 job. But this remote job wasn’t just any job. Great benefits. Flexibility in my work schedule. And they still let me freelance. It was the best of both worlds.

In mid-2018 when the startup was acquired, I was one of the people the new company agreed to keep on. The benefits were ok, but not as good. The work was still remote. But the kicker? They were talking about putting me on a schedule. Yeah, no. I walked away with no regrets.

Some of us like being self-employed, warts and all

My two-year stint as a W-2 employee was an anomaly. In general, I’m ok creating my own benefits package and freelancing. I like the freedom and flexibility. Recently, I turned down a gig. If I don’t like my pay, I say so. Sometimes I act like a diva.

And I can do that because I’m not an employee.

But if AB5 becomes a Thing, it would hamstring my ability to make money on my own terms. The main issue? This limit of 35 articles per year for a client. Most of my clients have me write one article per week. That’s 52 articles per year. According to AB5, I’d technically be an employee — and I sure as hell don’t want to be an employee again.

Not even for health insurance.

I’ve got nothing wrong with using a test to determine worker classification. But the items used with AB5 have the potential to force freelancers into a classification they don’t even want. Most freelancers I know — and this is purely anecdotal, I know — have no desire to be classified as employees. And they certainly don’t want an article limit to reduce the amount of money they can earn in a year.

What About the B2B Thingy?

Ah yes, the language pointing to the B2B exception, or whatever the hell they want to call it. Unfortunately, while technically it can provide a way for freelancers to avoid the stupid limit while not forcing them to work, the practical results are much different than intended.

Sadly, the reality is that many companies don’t want to sit down and figure out if their freelances “count” as businesses. It’s a whole Thing. Many accountants and legal teams for various agencies and companies are just like, “Let’s not take the risk of getting fined and just hire out of state!”

I know this is happening because companies have been asking me to freelance for them — and telling me that they don’t have the time or energy to figure out if their California-based freelancers meet the B2B requirements. You can bleat about exceptions this and provisions that, but in the real world, policy has unintended consequences and in this case, freelancers are getting hit hard.

Let’s Enact Policies that Make a Better Environment Overall

There are some things I can see as solid measures to protect workers. First of all, allow gig workers to join unions and engage in collective bargaining if they’d like. Additionally, with affordable healthcare, whether through a public option or Medicare for All (if that actually gets anywhere), one of the biggest reasons for working shitty jobs would be gone. A structure that actually allows gig workers access to affordable health insurance that isn’t contingent on their employer would be a game-changer.

Do we need more worker protections? Yes. Should we look for a balance between AB5 and something else? Also yes.

I know your intentions — and the intentions of other Democrats — are good. But let’s take a step back. There are some new realities about our economy, and whether we should be forced to rely on an employer for everything. A little more discussion might be in order before we try to take AB5 national.

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