Freelance Fight Goes National: Must-Know Info on The ABC Test

From Making a Living Writing:

[T]here’s a very real threat to American freelancing coming — and now is the time to organize to defeat it.

. . . .

For starters, let me introduce you to the proposed labor law that’s part of President-elect Joseph R. Biden’s platform: It’s known as The PRO Act (Stands for ‘Protecting the Right to Organize).

. . . .

The point of the bill is to clarify who is an independent contractor and who’s an employee. Luckily, you don’t have to wade through reams of legalese to get to the big problem for freelancers: The ABC Test it contains that is the proposed federal definition.

It’s right on the first page. Here’s a screenshot:

Pro Act language

If you’re a copywriter, you should be OK here. You’re writing for a widget maker, and their primary product isn’t marketing copy. It’s widgets.

But that point “B” of the ABC Test poses a barrier to any freelancer writing for a publication. Articles are the core, ‘usual’ business of that employer. If you’re writing articles for them as a freelancer, you flunk the ABC Test.

. . . .

If you’re wondering, this ABC test for who’s an employee and who’s a contractor dates from the 1930s. There’s a more recent test for telling freelancers from employees that dates from the 1980s, and it was created by the Internal Revenue Service.

It’s been being used for tax purposes for decades — and freelancers feel it’s the rule that should be used in The PRO Act, instead of the ABC Test.

In essence, the IRS rule says independent contractors have multiple clients, and do work on their own schedule, at their own place of business, with their own tools. It’s a simple definition that’s served to clarify freelancing for decades, in tax filings.

Then, along came Uber and Lyft, and an increased focus on the ‘gig economy.’

Unions soon pointed out that it could be considered worker exploitation for drivers to risk their lives — letting strangers get into their cars which might also crash and injure them — without even the protections full-time employees enjoy, such as paid healthcare. (Though the drivers themselves said they prefer to stay freelance.)

Lawmakers started looking for ways to compel the app-based companies to make their drivers into employees, and the ABC Test reared its ugly head. (Read on below for how that worked out in California.)

Something you may have missed: The PRO Act already passed the U.S. House of Representatives, nearly a year ago. With a Republican-controlled Senate, however, the bill stalled didn’t become law.

Now that Democrats control both houses and we have a Democratic incoming president, The PRO Act is back on the table for 2021.

. . . .

Three states have put forward labor laws with the ABC Test as their guide: California, New Jersey, and New York.

California’s Assembly Bill AB5, passed in September 2019, hit freelancers out of the blue. It wasn’t publicly debated, and implementation was immediate. The result was chaos — and a lot of journalists losing freelance jobs.

To sum up a very, very long story, here in bullets is the California legal arc:

  • Sept. 2019: AB5 implements the ABC Test. Freelancers lose work, as confusion erupts over who can hire what sort of writer when. Particularly onerous for reporters: A specific, 35-piece limit provision that makes it impossible to be a freelance weekly columnist.
  • Sept. 2020: AB2257 amends AB5. Scores of carve-outs and exceptions for dozens of industries soften the damage from AB5, including removal of the 35-article cap for writers. But problems remain, including a rule that freelancers must have a contract before working. That’s difficult to pull off if you’re a journalist, photojournalist, or videographer rushing to the scene of a protest or fire. Activists note this rule amounts to an assault on independent journalism and results in the suppression of news, as all news organizations have long relied on stringers or freelancers to get news their staffers can’t access.

. . . .

Freelancers continue to press for full repeal of AB5, to resolve the confusion these three separate, and in some ways conflicting, pieces of legislation have wrought. The American Society of Journalists and Authors (ASJA) is among the organizations suing for repeal.

“AB2257 made some things worse, with provisions that only apply to freelance writers, no other type of freelancer,” notes Jo Beth McDaniel, a freelance writer who chairs the First Amendment committee for ASJA.

California’s AB5 dropped on freelancers as an unexpected A-bomb (partly because it had no public comment period). When New Jersey and New York floated similar bills after AB5 passed, Kavin says, freelance journalists were ready for them.

. . . .

“When we explained how we earn a living, and how well many of us earn,” Kavin says, “they were flabbergasted. And once they learn it, they don’t want to cause us harm. When we don’t speak up, then they just hear from those who say we’re being exploited by the gig economy.”

Link to the rest at Making a Living Writing

PG notes that he hasn’t read any of the legislation described in the OP, but does acknowledge that legislators sometimes do dumb things because they don’t understand a great deal about the complexities of the American economy.

And, in many cases, organizations hiring lobbyists to push for various types of legislation are similarly clueless about all the different ways people operate and earn their livings within a free-market (or quasi-free-market) economy. They have an itch to scratch and are so focused on the interests of their supporters, they don’t consider how proposed legislative language might impact those who have lives and economic interests that are much different than their supporters have.

50 thoughts on “Freelance Fight Goes National: Must-Know Info on The ABC Test”

  1. This shark questions the “pro-freelancer” credentials here. When I traced back most of the money behind these kinds of articles in the immediate aftermath of Dynamex Ops. W., Inc. v. Superior Court (Lee), 4 Cal.5th 903 (2018) — the most-prominent recent adoption of the ABC test over the IRS’s preferred version — I found two kinds of sponsors:

    (a) Self-interested “gig economy” closely-held corporations that wanted to pay less for “gig economy” labor; and

    (b) Union-busting “think tanks” generally paid for by (a) and venture capitalists that wanted to ensure that everyone pays less for “independent contractor” work.

    What I find most interesting about this is the complete silence regarding how the rest of the world handles things. The US is an outlier here: Over the last sixty years (or thereabouts), there has been a successful effort on behalf of passive capital to squelch the ability of those-who-don’t-already-have-the-money to organize. One of the reasons that the Copyright Act is so screwed up and author payment for their works is so low is that authors legally cannot organize and strike, or collectively bargain for better pay/terms, precisely because the authors are “independent contractors”… and therefore independent business owners, fully subject to the Sherman and Clayton Antitrust Acts’ prohibition on collective actions that might tend to “restrain trade” (usually defined these days as “raise prices to consumers” without regard to any other factor).

    I’m not saying that “freelance writers must unionize!” is a panacaea (leaving aside the high probability that there are sufficient scabs out there to fulfill demand — remember, Sturgeon was an optimist) but that the unstated premise of the OP is that the only acceptable way to be a writer is as an isolated freelancer, with no access to collective knowledge or assistance and no ability other than individual lawsuits to deal with unfair practices by publishers, distributors, or anyone else. I believe there is and should be a middle ground… but that’s not (yet) on the table. In short, I reject the unstated assumptions of the OP and assert that the OP itself constitutes an unfair and deceptive business practice in violation of Cal. Bus. & Profs. Code § 17200 for failing to disclose those assumptions.

    The fundamental problem is “labor versus capital/management,” and where authors and their works fall in there. It’s complicated — vastly more complicated than acknowledged by the OP. (In case it hasn’t become excrutiatingly obvious either in this post or over time, my attitude toward “argument from soundbite,” “assertion of universal application without nuance or exception,” and “argument from pure ideology” would have to improve a lot to be just “contempt.”)

    • The barely caffeinated edits to the preceding uncaffeinated comment have gone into the ether and timed out, so please accept that I share the cringing at mixing first person and third-person nonspecific in the first paragraph, and the other typos…

    • I’m not saying that “freelance writers must unionize!” is a panacaea (leaving aside the high probability that there are sufficient scabs out there to fulfill demand —

      It would be great fun to watch authors turn on each other with self-righteous screams of, “SCAB!!! SCAB!!!”

      On the upside, an author could bridge the gap between author and real author by paying union dues and carrying a membership card.

      • Validation by certification.
        Soviet authors had that.
        A freelance writers union could surely put the dues to good use, lobbying their prefered party for government largesse. They could also help out dreamers by steering them to recommended publishing services, like Writers Digest, B&N, and most of the BPHs did and do; Author Solutions, who’ll be happy to kickback some of the loot from Dreamers that don’t do their homework.

        Yeah, what could possibly go wrong.

      • Since one of my clients (up to his death) was this guy (language may be NSFW) — who was well known for picking up the phone and screaming at his union leaders to show some spine and actually advocate for writers — this brings a sardonic smile to my face. And makes my point.

    • Read “Evil Geniuses” by Kurt Andersen. He goes in to detail about how they systematically have dismantled unions and such since the 1970s.

      What I find fascinating, is that there is virtually no commentary or pushback to the book. I expected a firestorm of attack. I just checked google, and there is nothing.

      • Leaving judgements aside, try considering that the US economy has changed dramatically since the 70’s (so has the rest of the world) with the growth of the white collar world, the service sector, and above all the small business sector. In 1988 there were 5million small businesses versus 30Million today, producing almost half the country’s GDP. None of those are sectors where the traditional adversarial labor vs capital model can shine.

        Culturally, a big turning point came in 1981 with the PATCO strike. Coming after years of the Carter stagflation and “malaise” the public at large was not overly sympathetic. It was an illegal strike, after all, impacting critical infrastructure services.Plus tbey had safe high paying jobs. Until they didn’t. Bad move, bad timing. That set the tone.

        After that came the PC revolution and with it the explosion of tech startups and the stock options model where the employees are part owners. Not much room for unions in such a world, where you’re “da man”. You’ve heard of the “Microsoft Millionaires, right?” Everybody working there when the company went public was a millionaire. Many retiredin their 30’s. Many of those moved on to their own startups with options. Every successful tech company has spawned a wave of followup businesses whether in SiliValley, Seattle, Boston,or Austin. Even failed companies from the era spawned their own followups.

        The tech world chose entrepreneuralism over egalitarianism.

        At the same time in the 80’s the japanese and german auto companies set up shop in the US and they brought with them a different vision of how to deal with unions. European unions, and german unions in particular, operate on a less adversarial and more cooperative model. Agressive adversarialism was not something those companies wanted to deal with.

        The new auto plants actively avoided the rust belt for lower cost of living, higher unemployment areas, and made a point of paying decent enough wages with less than oppressive work conditions and increasing automation. This served as a template. Workers responded.

        The key point to consider is that job creation has been in non-union businesses and regions and job losses have been in the heavily unionized businesses and regions. Correlation isn’t causation but as the economy changed, the business world changed but the unions didn’t.

        Add in that after PATCO, unions stopped trying to play the two parties against each other and became extensions of one, especially the public sector unions. As the Great Sorting has taken hold and polarization has swept through the land, the major unions lost touch with the working class folks who should be their backbone. If you look at the issues exploited by the orange guy they are all working class concerns the unions should have been working long before. Instead, they are aligned with what has been painted as the party of the elites, drawing disdain from the bulk of the working class, culminating in the JANUS DECISION of the SUPREME COURT.

        So no, nobody cares about the decline of private sector unions, whether from conspiracy or natural selection, because by and large their approach and concerns are not those of the bulk of the work force. They people who should be their constituency aren’t.

        Try this, the story of the latest union to form. High visibility, lots of sloganeering, minimal support:

        There *are* places where unions are needed but those aren’t the places they are going. They get a lot of media coversge but very little results. The industrial age is over; we’re living in a technological age that calls for new approaches, new tactics, not the same old same old.

        So no, few if any care.

        • At least the comment went through. HA!

          When I was reading the book I was thinking of you. The book will burn your brain.

          Great source for story, especially about my Billionaire character.

          Andersen is talking about all the usual suspects that I knew about over the past 50 years. He got 90% of what I saw, and hit the key points for me that explain what I was missing.

          This interview captures the flavor of the book.

          The Hive Interview: Can We Undo the GOP’s Decimation of America?

          In his new book, Evil Geniuses: The Unmaking of America: A Recent History, writer and public intellectual Kurt Andersen describes a kind of secret history that happened in broad daylight: Starting in the early ’70s, he writes, a band of conservative economists and pro-business groups, terrified of the progressive movements of the 1960s, drew up plans and blueprints for a version of America in which big corporations and Wall Street would be liberated from regulation and labor unions and antitrust laws, allowing the free market to sort out the winners from the losers. Their ideas powered the Reagan Revolution of the ’80s and over the next three decades reengineered the American economy to favor Wall Street and fatten the wealthy, resulting in a wildly inequitable society and the violent convulsions of the Trump presidency.

          “My ‘evil geniuses,’ the economic right, who really kept their eye on the ball and always keep their eye on the ball, let the rich get richer,” he says. “Lower taxes are everything. The power of big business to do what it wants is key and paramount and overrides everything else. But to get what we want and to be politically successful, we’re going to have to have as our allies this rabble. These white working-class people, these racists. That started in the 1960s and hasn’t stopped, and here we are with Donald Trump. That Faustian bargain maybe has come due, and maybe the evil geniuses will now, at least some of them, go to hell.”

          This week Andersen joins special correspondent Joe Hagan for an in-depth conversation on Andersen’s virtual autopsy of recent history, including the role of toothless Democrats and the “liberal useful idiots” who not only cooperated in the great bamboozlement, but benefited from it—including, Andersen admits, himself.

          • Their ideas powered the Reagan Revolution of the ’80s and over the next three decades reengineered the American economy to favor Wall Street and fatten the wealthy

            Anyone have an IRA?

          • What portion of the population owns stock in the US?
            Answer: 55%.

            And that is on top of IRAs and Fedefal government employees whose retirement is partially based on the stockmarket.

            They are “da boss”.

            The fallacy of the book and the inequality handwringers is they assume all, or even a majority of inequality is due to government action.

            As if life choices don’t matter, as if single parent households (and how they came to be) don’t matter, as if long term planning didn’t matter.

            As if culture (not CULTURE!) didn’t matter.

            You want an Amazon book, try this:


            Or look up the PBS documentary from the 90’s.

            Inequality has a lot of causes.
            IdiotPoliticians™, of either stripe, are only a fraction of the problem. But they are a high visibility target that allows the real and bigger and way harder problems to be swept under the rug.

            Sure, raise taxes.
            Confiscate the wealth of the super rich, break up the biggest employers. Give the levelers everything they want.

            How is that going to reduce the number of children raised without a father? How is that going to provide jobs to the hordes going into ethnic studies and puppetry instead of careers as technicians, mechanics, farmers, engineers, doctors, or other knowledge based careers that actually keep the country running?

            In a free society you get to make choices.
            You also get to live with the consequences.
            Or you whine about how unfair the world is.

            Harry Stine in a story described a technique called ESP, for Exageration of System Parameters as a way to project future results. It is actually useful in world building. And in studying real life.

            Give it a try: see what the numbers say.

            Hint, you won’t like what the cold equations say.

            • I understand what you are saying, but that has nothing to do with the book.

              Evil Geniuses: The Unmaking of America: A Recent History

              This is the ad copy on the product page:

              During the twentieth century, America managed to make its economic and social systems both more and more fair and more and more prosperous. A huge, secure, and contented middle class emerged. All boats rose together. But then the New Deal gave way to the Raw Deal. Beginning in the early 1970s, by means of a long war conceived of and executed by a confederacy of big business CEOs, the superrich, and right-wing zealots, the rules and norms that made the American middle class possible were undermined and dismantled. The clock was turned back on a century of economic progress, making greed good, workers powerless, and the market all-powerful while weaponizing nostalgia, lifting up an oligarchy that served only its own interests, and leaving the huge majority of Americans with dwindling economic prospects and hope.

              Why and how did America take such a wrong turn? In this deeply researched and brilliantly woven cultural, economic, and political chronicle, Kurt Andersen offers a fresh, provocative, and eye-opening history of America’s undoing, naming names, showing receipts, and unsparingly assigning blame—to the radical right in economics and the law, the high priests of high finance, a complacent and complicit Establishment, and liberal “useful idiots,” among whom he includes himself.

              Only a writer with Andersen’s crackling energy, deep insight, and ability to connect disparate dots and see complex systems with clarity could make such a book both intellectually formidable and vastly entertaining. And only a writer of Andersen’s vision could reckon with our current high-stakes inflection point, and show the way out of this man-made disaster.

              Read the sample for the ebook. I think that he captured the zeitgeist of the past 50 years very well.

              I kept feeling real anger as I read along. He filled in the pieces that I was missing. I was able to track down the Powel memo and most of the other stuff that he mentioned. Chilling.

              I watched it all fall apart.

              • I think we must respect P.G.’s guidelines on politics, I’ll just note that Andersen’s account is neither particularly fresh or novel, and is very much in dispute.

                • I’m curious, where is it “very much in dispute?”

                  I expected the book to trigger a firestorm, yet I have not found any “dispute”. The book is being virtually ignored.

                  Sorry, but your comment makes no sense.

              • God Bless 1970.
                Anyone want to check into a hospital practicing 1970 medicine?

                Who wants to drop Medicare (1965)?
                Who wants to drop Medicaid (1965)?
                Who wants to return to Jim Crow?
                Who wants to return to rabbit ear TV?

                The book is being ignored because it is silly. Nobody cares about it.

                • We have a winner here.

                  That’s one of the strangest comments so far. It clearly has nothing to do with the book itself, but you knew that.

                  As I said below to TonyT if you have any links where they call the book “silly” please let me know. That would be an interesting review to read.

                • Alynh told us, “He goes in to detail about how they systematically have dismantled unions and such since the 1970s.”

                  So, let’s look at the cited date and see how things were. Who wants to go back to gas guzzlers getting 11 miles per gallon? How about VietNam? Tell us how good 1970 was.

                  I doubt there are any links saying the book is silly beyond mine. That’s because it’s silly.

              • The assumption is that the economy is to blame for “the wrong turn”. It may not be the sole or even primary cause.
                Evidence exists that culture is at least as culpable for inequality as the Gordon Gekkos of the world.

                Sometimes you *do* have to “blame the victim”. (c.f. DARWIN AWARDS.) Or the people pretending to help. For various values of “help”.

                Look back to the full history of Daniel Patrick Moynihan who was sounding the alert about the unraveling of inner city culture and families since the 60’s and 70’s and was demonized by his own party for it. Fast foward to the 80’s and 90’s and his every warning came true.

                Not everybody claiming to help actually has your interests at heart and demonizing any specific group achieves nothing but create enemies.

                That right there brands the book irrelevant to solving the problems of the day.

                Useful for world building, though, knowing such thinking is real.

                • That’s why I was thinking of you when I read the book. On page 232 he talks about Moynihan saying:

                  “Why don’t we just delete the words ‘age 65’ from the Medicare statute?”

                  This was at the end of all the hearings for the Clinton health care plan.

                  There is all sorts of stuff like that throughout the book that you will enjoy.

                  What shocked me the most was finding out how many Foundations and think-tanks they created in that time frame to push back against the New Deal. It wasn’t just one or two billionaires causing havoc. That explains so much of what I saw over the past 50 years.

                  BTW, If I start making big bucks I’d planned on funding science programming on TV, like NOVA, but there are already billionaires deliberately dumbing down science on PBS as part of their agenda to cripple society, so no matter how much money I make, they will always be there to stop me. HA!

      • Wow, just spotted this comment. Sorry about that. It looks like the other thread ran out of “reply” so we can continue here.

        I just did another search and finally found the wiki page with a few more reviews that I missed.

        Evil Geniuses: The Unmaking of America

        If you have any links that attack the book, please list them. I am really trying to find as much discussion of the book as I can. Even negative reviews are better than no reviews at all. This is disturbing.


        • If you want to see a case where the Union hurt its members rather than helping them, go read “And the Wolf Finally Came” — a book about the demise of the Steel industry in the US in the late 70s. [Partial bottom line: Management and the Union were so focused on screwing each other that nobody was watching the business. It’s a sad story with remarkably few good guys in sight.]

          Or see the story of how Kroger exited the supermarket business in Pittsburgh PA in the mid ‘80s. Capsule version — Major competitor cooked up a great advertising campaign along with actual near-minimum-cost pricing. In next round of union contract negotiations, Kroger asked for concessions from the Union. Union reps said “no!” Kroger responded saying “we really can’t afford to pay anything more than what we’ve offered. Send in your own accountants and consultants; we’ll open the books so they can give you an independent assessment.” Union sent in their own accounting/consulting team, who reported back saying that they thought that Kroger couldn’t even afford the pay rate they were offering, much less anything higher, and that the union was nuts to think higher pay was even a remote possibility.
          Union then voted to go out on strike for higher pay. Then, they were surprised when Kroger locked the doors on the supermarkets and just exited the entire regional market.
          THEN, the union picketed the stores that opened up in those ex-Kroger locations because the new stores declined to hire the union workers who drove Kroger out — at the exact same contract terms that Kroger couldn’t afford.

          • Makes you wonder why those workers in right to work auto plants keep voting down the union. And the teachers leaving the unions now because they can?

          • There’s an assumption in here that bears examining: That Kroger was entitled to at least the same profit margin as it had before the union negotiations.

            Perhaps, in the grocery business, that low margin is more of an issue (although Kroger’s growth since the 1970s sort of undermines that… especially when one examines how much of actual “profit” is obscured by accounting and tax conventions). So let’s consider, say, Uber drivers. Uber has been immensely profitable but for the whacko, inapplicable-in-concept-but-allowed accounting rules. In a union negotiation, exactly how much credence should we give the claim that “we’ll have to raise prices! we can’t cut our profit margin!”?

            I’m offering this as food for thought; it’s a seldom-examined assumption in the capital-versus-labor struggle, that capital is entitled to not just some positive return but a return at least equal to its historical return… which may have been achieved due to nonmarket-rate labor costs. Application to “the author’s share of casebound book revenues is limited to 15% of cover price” is left as an exercise for the student. (A phrase that, if you’ve ever taken a higher-level math class, is code for “And there isn’t a provable general solution.”)

            • That particular assumption was not, in fact, embedded in my regional Kroger example. In the particular market and circumstances I was describing, the issue wasn’t “the same profit margin” or even “a non-negative profit margin.” Rather, it was “limit the losses to a level that would be sustainable while they figured out how to compete successfully.”

              Regarding your food for thought, I would argue that nobody is “entitled” to any particular return whether it be on capital or labor. That said, it shouldn’t be a surprise that a business (or an author, or a person) might choose to exit a market rather than incur losses that they assess as being “too large” (whatever that means to them).

              • When the measuring instrument for “the losses” is the same as that for “the profit,” and the measuing instrument improperly treats some things as “costs” that, if they weren’t labor-related, would be treated as “investment in capital plant” and therefore not part of the profit calculation, it doesn’t matter whether the result of the measuring instrument “says” profitable or not — it’s still wrong.

                Training employees better is a “cost” under accounting standards. Buying robots to replace employees — even when vastly more expensive — is a capital investment. And it gets even more interesting when intellectual property is involved. I could go one for pages (and have; it’s what advocates do)…

                So we’re actually not talking about the same thing.

            • The reality is that Uber has been immensely unprofitable, as measured by cash flow (see for example ). Maybe measured by stock price, but I don’t think that’s a good metric, and sometime, I think, the stock price will drop to reflect its cash flow reality.

              A lot of this “regulation is great”, “unions are wonderful” relies on the fallacy that government employees and union leaders are disinterested actors. That’s not true (see public choice theory and regulatory capture), just like thinking that management always has the best interests of the company overall in mind (instead of their own interest).

              There are plenty of workers who don’t like unions – I’ve heard enough about unions in the automotive industry and other places to be happy that I don’t have to deal with them. (That said, there are plenty of companies that deserve unions).

            • There’s an assumption in here that bears examining: That Kroger was entitled to at least the same profit margin as it had before the union negotiations.

              Who is assuming? That’s not supported by the text. It doesn’t say if paying the union demand would result in a lower profit or a loss.

              Nor is there any support in the text for either party being entitled to anything.

  2. The problem with these attempts to “rein in” the gig economy using the tools of the past goes beyond the need to carve out exceptions for pretty much everything other than “badboys” UBER and LYFT. It is the failure to recognize that the gig business model is a transitory phase (like NETFLIX DVD-by-mail phase) that was never intended to last. The gig model that so offends exists to:

    – Raise brand awareness (check)
    – Secure market share and build a customer base (check)
    – Undercut entrenched players (Taxi companies) so they are unable to undercut the final phase. (No Chicago-style Taxi war).

    – Raise revenue to fund the development of the technology needed for the end state business model. (Derailed but still ongoing.)

    Both UBER and Lyft have been trying to develop an inhouse self-driving car tech with mixed results. So are others, with better results. While the powers that be fight UBER and LYFT, TESLA and others are doing an end run on the whole contractor or employee catfight by taking the human out of the loop. UBER and LYFT have been undercutting the taxi companies’ political power and in the process they are laying the groundwork for the RoboTaxis that are coming, owned by UBER, LYFT, the taxi companies, or independent operators. At which point the whole debate becomes moot.

    As to how soon this might explode, well the media has been breathlessly proclaiming Elon Musk the richest man in the world (on paper, anyway) thanks to the boom in TESLA stock at the plan to set up its own version of the UBER network relying on independent car owners renting out tbeir cars when they don’t use it.

    (Like with most really advanced technology efforts, I am short term bearish, long term bullish. Cheops- Law rules.)

    Odds are very high the gig economy war will simply pave the way for *somebody’s* RoboTaxis, making matters of unjons, minimum wage, etc, irrelevant.
    But the collateral damage will be high on the bystanders.

    • Ah, the Omelas Problem: On the way to Utopia, someone is almost certainly going to be crushed. In Le Guin’s story, it was a child unable to speak up for itself. When you’re crushing adult economic actors, you end up creating Mensheviks.

      I should also add one other flaw regarding the OP: It depends entirely on assuming that freelance writers “provide a service” (look carefully at the quoted statutory language). That’s… not at all certain; intellectual property is not a service, and “writing” is not in the business of many publishers.

      My favorite policy hobgoblin is certitude about uncertainty. The only certitude anyone should ever have in the face of uncertainty, or ambiguous scope/definitions, is that someone will attempt to exploit that uncertainty (or ambiguous scope/definitions) in pursuit of an entirely unrelated agenda.

        • There’s a huge difference between “crush” and “use for your own advantage.” This is one of the fundamental problems with neoclassical economic theory, especially when misextended from individual-transaction scale to broader scales, let alone macroeconomics: There’s a difference between the victim being “a person” and “a person’s financial advantage.”

            • There’s also risk’s occassional outcome: reward.

              A lot of businesses now decried, especially in tech, went in with no safety net, no guarantee of success, and were often laughed at. They persevered, brought something new to the world and were rewarded grandly for it.

              Risk brings reward but it also requires competency.

              Not every attempt succeeds nor do those that succeed succeed big.
              But those that do tend to remake the world.

              Computers are an excellent example. For a couple decades people (outside SF) laughed off the idea of people owning their own computer. Ken Olson, founder of DEC became the poster child fpr that mindset when in 1974,David Ahl, one of his regional marketing reps brought to him a proposal for a small file cabinet sized single user computer for small businesses.

              “Ahl was part of a group that was constructing a computer for the home in 1974, but Olsen refused to support the full development and marketing of the system. Ahl later recounted his unhappy experience. In 1980 he published in “Creative Computing” his conversation with Gordon Bell, an important innovator in the computer field employed at DEC.

              Dave: Just prior to the time I left DEC in 1974 I remember Ken Olsen (president of DEC) saying that he couldn’t see any need or any use for a computer in someone’s home and, as I recall, at the time you took some issue with that. Then he repeated it several years later at the World Future Society meeting in Boston and some people in the audience took issue with that.
              Yeah, some folks took issue with that.
              The PC Revolution was their reply.
              (Thanks primarily to PCs and the Internet US productivity tripled over two de ades from $2.9T to over $10T.)

              One of tbose was Bill Gates quit HARVARD and devoted himself to writing a BASIC interpreter, solely on spec, for the ALTAIR, the first consumer microcomputer *kit*. From there he created Micro-Soft to sell baggies with paper tapes and a mimeographed instruction sheet.
              His mission statement was : a computer on every desk and in every home. (Unstated: all running Microsoft software.)

              He gambled his entire future and made it stick.
              Risk is part of the equation; competency is the other.

  3. AB5 has had another interesting result for the very large corporation that employs me. We use consultants and freelancers for a variety of purposes. (Please pardon the vagueness; corp. rules.) Once AB5 became law, we were instantly unable to hire any consultant or freelancer to work in California. Any onsite work must happen outside CA. Even if it’s being done by a major consulting firm. Consultants and freelancers who are located in CA are flatly SOL when it comes to working with us. Our lawyers are unwilling to incur the legal risk presented by AB5.

    • Then your corp. needs new lawyers…

      …or, more likely, new liability insurance underwriters. At least in the part(s) of the entertainment industry on which I’ve done consulting for CA entities in the last decade, more often than not the lawyers’ opinion of what good employment policy was (or was not) was determined by “If we do x, and then get sued, will we be covered? Will a defense be tendered, whether or not we did anything wrong?” That’s especially true for the “more traditional” parts of the entertainment industry, like film/television production, live theatre, and publishing — most of the time it’s blamed on “the lawyers,” it’s really “the lawyers were told coverage would be denied.”

      Which is an explanation and not an excuse. AB5 is a horribly badly written statute, primarily because they didn’t get litigators who actually do employment litigation from both sides of the v. to review the text to see if it would actually accomplish the objective without (as we used to say in my first, far-more-dangerous career) excessive collateral damage.

      • Maybe not doing business is CA is cheaper and simpler?
        Modern communications tech (available long before the pandemic) means that in many (most?) cases work need not be carried out in any specific location. Outsourcing isn’t just for manufacturing or call centers.

        Speaking of the video business, it is my understanding that CA has lost a big share of the filming work to Vancouver and Toronto due to regulations. The CW might not exist without Vancouver techs and their lower labor costs.

        Too many laws (and policy advocates) assume the entities targeted by their “solutions” will remain passive and meekly accept what is inflicted without adapting, which renders them counterproductive when enacted. Or before, as the ongoing migrations of billionaires and corporate HQs ahead of planned tax increases in CA and NY.

        Actions breed reactions. A common reaction to these kinds of mindless overreach is “Life is too short…”

        • Too many laws (and policy advocates) assume the entities targeted by their “solutions” will remain passive and meekly accept what is inflicted without adapting, which renders them counterproductive when enacted.

          This is one of the most infuriating things about these people: they don’t “human” well enough to grasp the basic concept of “stimuli and response.” They can’t fathom that if someone is seeking to do something, they’ll simply route around an obstacle … if they don’t simply bulldoze the obstacle to smithereens.

          In writing terms, this dumb mentality is how you get Mary Sues pitted against cartoonishly inept villains.

          • I strongly favor conflicts between conflicting agendas over folks who are actually evil (as in do unnecessary harm on purpose). Even cartoonish villains (ocasionally useful) should have a motivation to justify the effort.
            “Everybody is the hero of their own story.

            I just finished watching another of the endless tough guy action thfillers on Netflix because I ran into a review pointing out thst for some reason the obscure 2013 flick had jumped to the top of the viewer fans (#5 yesterday) and it was easy to see why. Excellent casting and acting, good direction, but above all a script that should be studied by anybody working in th at field. Every main character had motivation and nuance, every action bred a reasonable reaction from their point of view. It is practically shakespearean.

            HOMEFRONT. Screenplay by Sylvester Stallone.

            Reminded me of Eastwood’s UNFORGIVEN, who held on to the project untilhe was old enough to do it justice. In this case, Stallone wrote it for himself but he realized he had aged out of the role so he gave it to Statham.

            A decent enough way to kill two hours.
            Educational, too, for would be thriller writers.

            • “Conflicting agendas,” correct. I’ve been trying to make the case for such to another writer who treats villains as bowling pins for overpowered protagonists to knock over. The protagonists are often facing a strange and inscrutable form of oppression: people are mean to them “just because.” No motivation. No nuance at all. Very frustrating, because I can see so many ways to enrich the story with just two elements.

              “Homefront” sounds interesting; I like it when a story is also a lesson in good storytelling. A friend and I are supposed to meet up for a Netflix-and-chill day. I am decidedly not the target audience for the type of comedies or horror she’s into: on a first date with her boyfriend, she watched “The Human Centipede.” It sounds like “Homefront” would make an excellent saving throw for me when we pick our line-up.

              • You judge: HOMEFRONT is about a DEA agent whose wife dies and he retires (presumably thanks to insurance money) to a deep small Louisiana town from the area his wife grew up in, with his 9 year of daughter (who wanted a horse).
                A kids’ argument touches off the action.
                Jason Statham stars so you know it’s not going to end quietly.

                As for the conflicting agendas thing, it isn’t hard to give the villain a motivation, even a simple one like greed. You just need to pick one. Now, making him an understable (if not necessarily likeable) opponent for the protagonist does take some thought but no more than other elements of a good story.

                My all-time favorite villain is Blackie Duquesne from The Skylark series, who even in 1928 was clearly defined with an agenda, specific goals in a plan, and his own twisted ethics. In a first novel. And an early Space Opera, pre Campbell, pre Heinlein, to boot.

                It just requires the will and some thought.

                • Homefront is a go.

                  I have some time to kill, so I’ll look for the Skylark series. A lot of “radium age” sci-fi is fun / looks fun.

                • Most of SKYLARK is PD by now.
                  Gutenberg has a dozen Doc Smith volumes:


                  With a caveat:

                  SKYLARK OF SPACE was written in the late 28’s. Pre relativity so it (and the LENSMAN SERIES, of which Gutenberg has the first two volumes) are Newtonian SF. Both are seminal in thefield (Green Lanterns, Jedi, Star Trek, Nova corps among many are derived from Lensmen) but SKYLARK is even more so: it literally spawned the Buck Rogers franchise by accident. The syndicate that licensed ARMAGEDDON 2419 AD and adapted it for the strip thought the scene on the cover of the magazine was from ARMAGEDDON when it was from SKYLARK. If they had asked, we’d be talking of Skylark wannabes instead of Buck Rogers copies.

                  The caveat is Skylark was (slightly) reworked in the late fifties/early sixties, so the newer version is still under copyright. The first two sequels (SKLYLARK THREE and SKYLARK OF VALERON) weren’t.
                  Amusingly, Smith addressed relativity in a brief exchange between two of the characters, where best friend Crane points out their supraluminal speed is supposed to be impossible under relativity and supergenius Seaton shrugs it off. “It was a theory. The speed is real.”

                  Otherwise the changes are minimal – faithful asian butler gets a more modern presentation and dated tech references refreshed. By the fourth volume SKYLARK DUQUESNE, the butler is more than a cardboard asian and a more rounded character and as heroic as the rest of the supporting cast. Also, by then Smith realized what he had in Duquesne and gave him half the book to himself. By the end I was hoping for a Duquesne solo volume. It is one reason I hope somebody brings SKYLARK to streaming so he can get his own spinoff.

                  If you go to Gutenberg, do pickup all the available books; GALAXY PRIMES is delightfully weird. TEDRIC is just fun.

                  Not everybody can appreciate the early pulp era stories but they laid the foundation of what has come since. They were the first and in many ways still best.


                • FWIW, here is an unbiased(?) discussion of Doc Smith’s role in the field:


                  “When in 1915 Smith began to write the first novel of his Skylark series with Mrs Lee Hawkins Garby, a neighbour seconded to help with feminine matters such as dialogue, no prior models existed in popular fiction to source the combined exuberance and scale that The Skylark of Space (written 1915-1920; August-October 1928 Amazing; 1946; rev with cuts 1958) demonstrated when it finally began to appear in Amazing Stories, two years after the start of that magazine, in the same issue as Philip Nowlan’s “Armageddon – 2419 A.D.” (August 1928 Amazing), the story which introduced Buck Rogers in the 25th Century. Elements of Smith’s prelapsarian exuberance may have been discernible in some of the Edisonades which proliferated in the USA from about 1890; and a certain cosmogonic high-handedness is traceable to the works of H G Wells and his UK contemporaries. But it was Smith who combined the two. Along with its sequels – Skylark Three (August-October 1930 Amazing; 1948), Skylark of Valeron (August 1934-February 1935 Astounding; 1949) and Skylark DuQuesne (June-October 1965 If; 1966) – The Skylark of Space brought the edisonade to its first full maturity, creating a proper galactic forum for the exploits of the inventor/Scientist/action-hero who keeps the world (or the Universe) safe for US values despite the efforts of a foreign-hued villain (Marc “Blackie” DuQuesne) to pollute those values. But the highly personalized conflict between Hero-inventor Richard Seaton and Villain-inventor DuQuesne – who develops from the stage histrionics of the first novel to the dominating antiheroics (see Antiheroes) of the last, and who is perhaps Smith’s most vivid creation – did not very satisfactorily motivate the vast intergalactic conflicts of the later volumes of the series, as the scale of everything – the potency of the Weapons, the power, size and speed of the Spaceships, the number of planets overawed or annihilated – escalated by leaps and bounds. Nor was Smith much concerned to sophisticate the chummy, clammy idiocy of his women (see Sex; Women in SF) – Mrs Garby retained co-author credit in the first book edition only, the 1958 revision excising her contributions and her name; she was not involved in any further attempts to import human interest into the series – or the hokum of the slang in which all emotions were conveyed. “

                • @Felix because I can’t reply directly —

                  Thanks for those links! For some reason I’m cracking up at the idea of dialogue being a “feminine matter,” when all along I’ve assumed men use words and not grunts when speaking to each other.

                  But more seriously, your points about the relativity are precisely why I advocate that sci-fi pay attention to good storytelling and characters, and not only on being scientifically accurate. A good story is still a good story even if a scientific fact becomes “fiction” after the story is published.

                • Smith was born in 1890 and started SKYLARK in 1915, getting it published in 1928. I would guess (just a WAG) that he did a first draft and had the neighbor lady rework the female dialogue, not trusting himself to know the proper lingo of flapper era young women. (Write what you know.)

                  The thing about the science is that Smith intended the story to be “hard” SF and it was, in fact, in line with the science and tech of 1915-28. He was never happy for it to be called Space Opera. Even though he shaped the subgenre to this day. 😀

                  I dug out the 1958 update for the first time in ages and I have to say not only is it quite readable by modern standards, it actually holds up as good writing. The structure and flow in particular. He takes you from mundane Washington to the deepest parts of the galaxy smoothly and easily.

                  In general I agree that slavish scientific accuracy can be a long term negative for a lot of stories while being short term useful. Good SF needs to stay within the expectations of plausibility and rationalism but science fact changes too fast to tie oneself to it too strongly.

                  A good part of the fun is the “whst if” or “if only”.

  4. My favorite example is the Washington DC cigarette tax. Sometime in the Eighties, the city fathers decided they could make lots more money by doubling the cigarette tax. So they did.

    Then total tax revenues fell by more than half. Commuters who lived in Maryland and Virginia stopped buying cigarettes in DC, and bought them in Maryland and Virginia instead.

    Sounds simple. But this happens all the time. Officials in DC blamed consumers.

  5. Ah, national is it now? This will be interesting. On freelance job boards for writers and editors, AB5 resulted in ads specifically stating that you can’t live in California if you want the job. Freelance reporters on Poynter (a news industry blog) have been fretting about this.

    I saw something like this before. When a particular aunt was still [relatively] healthy, a union in Michigan decided that independent business owners like her were now part of their union. Therefore, they could steal her money. They would say the theft was dues. Even though my aunt, a legally blind woman, never joined their union. Even though she had nothing to do with them. Even though she wanted nothing to do with them. Even though she did not need them. They needed her money, so she must give it to them. For her own good.

    Voters soon after made the whole state right to work.

    @C.E. Petit but that the unstated premise of the OP is that the only acceptable way to be a writer is as an isolated freelancer, with no access to collective knowledge or assistance and no ability other than individual lawsuits to deal with unfair practices by publishers, distributors, or anyone else

    It’s unstated for two reasons:

    1) Partially because her target audience, freelance writers, don’t think that way. Hence the existence of all the writing organizations that specifically offer “collective knowledge or assistance” and legal aid, not to mention insurance in some cases. The site itself, “Make a Living Freelance Writing,” has an important link in the nav bar, “Writing Community,” specifically designed to offer up all that collective knowledge you’re accusing her of not wanting to share.

    2) But mostly because the OP doesn’t think that at all, and would likely be astonished at this bizarre interpretation of her plainly stated words:

    As a former union member myself (OPEIU, yo!), I’m glad to see the focus on strengthening unions. It’s no secret that the decline of unions means a shrinking American middle class.

    But union strength and the freedom to freelance both need to be upheld. The Virginia law shows we can do both.

    The middle ground you say “isn’t on the table” is the ground she’s been seeking, and Tice even highlighted one law she believes reaches it. Maybe she’s wrong about the law doing that — Tice didn’t say if she’s also lawyer — but she’s stated she’s seeking that middle ground all the same. Observe that the the subhead preceding the quote I posted says: “Pro Union, Pro Freelancer”

    Perhaps in other freelance professions no organizations exist to help independents, and the freelancers in those instances are completely atomized. However, the OP is focused on writing, and her background is news writing. The reality you [erroneously] say she’s endorsing only exists in the bearded Spock universe. In reality, many newspapers are unionized or the writers / editors /photographers collectively organize via other means.

    Go with the words the writers actually wrote: “When we [freelancers] explained how we earn a living, and how well many of us earn,” Kavin says, “they [the legislators] were flabbergasted. And once they learn it, they don’t want to cause us harm. When we don’t speak up, then they just hear from those who say we’re being exploited by the gig economy.”

    Emphasis mine. One thing I noticed living in UAW country was that the union often took it upon itself to “speak” for people who wanted nothing to do with them. An amusing incident was when I went to a hotel cafe for breakfast, as I often did when I worked at the nearby newspaper. That morning, union protesters were marching outside the hotel with their tell-tale pre-printed signs, claiming the cafe was oppressing the workers. I didn’t recognize any of them.

    When I went inside, I asked the barista how the hotel was wronging her and the others. I was planning to give her the name of a few business reporters who were due to arrive at work soon (it was almost 10am).

    But the barista was irritated, and said flat out that neither she nor her coworkers had anything to do with that protest. They weren’t part of that union, and they weren’t oppressed. A few minutes after serving me, she vanished. Shortly after, she reappeared outside with her coworkers — who I did recognize — bearing homemade signs they clearly made with their own Magic Markers. Their signs said, “You don’t speak for us! Go away! We don’t want you!” And so on.

    It IS vital to always pay close attention to “spokespeople” in these situations. One quick tell in a protest is whether the signs were clearly printed off a press, vs. homemade. The people who make their own signs are typically ordinary people who have a grievance they want addressed. The people who bear press-printed signs have their own agenda, and will often wage that agenda at the expense of the ordinary people on whose behalf they claim to speak.

    • Not everybody who claims to want to help you actually does. Want to help or actually do so. Applies to unions, activists, politicians, as well as well-intentioned idealists.

      The posers are bad enough but the law of unintended consequences makes the latter far more dangerous. Life is complex. Chaos rules. Entropy always wins.

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