A lot is happening this month in the legal fight to help photographers dealing with California’s restrictive AB5 labor law. NPPA has filed an appeal in its lawsuit challenging the statute and the California legislature has introduced two similar bills that would remove the 35-assignment limit from the current law. We also sent a letter expressing our opposition to that legislation and will be filing formal comments on those bills. In response, the California State Assembly Committee on Labor and Employment has allowed us to testify by telephone during a legislative hearing on May 20. Photographers interested in having input on pending legislation can submit written testimony by Wednesday morning.
AB5 is a new labor law in California that, effective January 1, 2020, converts many independent contractors to employees. There are exemptions for certain categories of professional service providers, but the exemption for visual journalists caps submissions to 35 per year per client. In addition, the professional exemption does not include freelance videography, and as NPPA has argued in its lawsuit, the plan language of the law operates as a ban on freelance videography. As a result, visual journalists in California have lost business and faced uncertainty.
NPPA’s Legal Challenge to AB5
NPPA—along with its co-plaintiff American Society of Journalists and Authors—launched a legal challenge to AB5 in late 2019, asking a federal court to hold that the restrictions on freelance visual journalism that are different than restrictions on other communicative professions such as marketing are unconstitutional. We asked the court to enjoin the enforcement of the 35-assignment limit and the freelance video ban. The harm to freelance visual journalists who are involuntarily reclassified as employees include a loss of their copyright, the inability to deduct business expenses on their taxes and the loss of business.
In two separate district court rulings, the court dismissed the case in its entirety and also denied the preliminary motion to enjoin the restrictive limits that California’s AB5 places on freelance journalism. NPPA and ASJA appealed the decision and filed their opening appeal brief on Friday outlining the harm freelance journalists in California face under AB5 and asking the appeals court to reverse the orders below.
Proposed Legislative changes to AB5
Separate from the lawsuit, the author of AB5, Assemblywoman Lorena Gonzalez, has introduced two bills (AB 1850 and AB 2257) that would remove the 35-assignment limit on visual journalists. While NPPA is pleased by this proposed removal of the arbitrary assignment limit, we also are concerned that the clause relating to freelance videography is still so broad and vague that it would prohibit freelance video journalism. NPPA’s attorneys sent a letter to the California Assembly’s Labor and Employment committee asking them to revise the bills in a way that would clarify the freedom to shoot freelance video journalism without losing independent contractor status, and we plan to testify on the bills during a hearing on Wednesday.
Photographers interested in testifying on their own behalf on AB 1850 and AB 2257 may do so here (you must register):
Below are some suggested talking points:
- Explain that you represent yourself and briefly describe your status as a professional photographer or videographer (do not imply that you represent NPPA).
- Briefly state any harm that AB5 has caused you or your business. If AB5 has exacerbated COVID-19 harm you can include that information but be brief.
- State that you support the removal of the 35-submission cap for photographers
- State that you would like the restrictions on video that implicate journalists to be removed as well.
- State that any restrictions that treat journalists unfairly when compared to other professionals is a violation of the First and Fourth Amendments.
- Above all, be polite and respectful. Your message will not be heard if you are rude or demeaning to lawmakers.
Keep your testimony as short as possible, preferably no more than one page. Written testimony should be submitted prior to 10am PDT/1pm EDT on Wednesday, May 20, 2020.