AB5 for California Freelance Writers and Journalists, Photographers, Photojournalists, Editors, and Newspaper Cartoonists
How Does the New Gig Worker Law (AB5) Affect Freelance Writers & Journalists, Photographers, Photojournalists, Editors, and Newspaper Cartoonists?
This page is part of our guide to the new Gig Worker Law (aka AB5), which determines whether a worker is an independent contractor or an employee. Before reading this, please see the full guide.
The following may be exempt from the new “ABC test” if they meet all of the below conditions AND do not provide content submissions to any particular company more than 35 times per year: photographer, photojournalist, freelance journalist, freelancer writer or editor, cartoonist. If you are exempt from the ABC test, you must then use the Borello test to determine whether you are a freelancer or an employee.
Conditions for conditional exemption:
- Maintain a business location, which may include the individual’s residence, that is separate from the hiring entity. But the individual may choose to perform services at the location of the hiring entity.
- Maintain a business license, in addition to any required professional licenses or permits for the individual to practice in their profession.
- Ability to set or negotiate their own rates for the services performed.
- Outside of project completion dates and reasonable business hours, the individual has the ability to set their own hours.
- Customarily engage in the same type of work performed under contract with another hiring entity or holds themselves out to other potential customers as available to perform the same type of work.
- Customarily and regularly exercises discretion and independent judgment in the performance of the services.
What is Considered a Submission under AB5?
A “submission” is defined as one or more items or forms of content produced by a freelancer that pertains to a specific event or specific subject, and is provided for in a contract that defines the scope of the work. So, you can essentially define in your contract what counts as a submission. For example, a news publisher and freelance photographer could negotiate a contract stipulating that all the content related to coverage of Comic-Con over the course of a weekend is counted as a single submission.
When calculating the amount of submissions per year, items of content related to a general topic produced on a recurring basis are considered separate submissions. For example, if you regularly produce articles for a publication that cover crime in a particular region, these are still considered separate submissions.
Does the company need to actually accept a submission for it to count?
Yes. The submission must actually be accepted by the publication or stock photography company in order to count towards the 35-submission threshold.
Is there a limit to how many companies I can work for?
No. You can provide licensed content submissions to an unlimited number of publications or stock photography companies.
What happens after 35 submissions?
You can continue to provide submissions to companies beyond the 35-submission threshold, but then you would be subject to the ABC test, and the company may (or may not) be forced to classify you as an hourly, piece rate, or salaried employee.
Does AB5 prevent me from selling my work to the public?
Nothing under AB 5 prevents a photographer or artist from displaying their work product for sale. See more about law for artists.