As newsrooms have laid off more and more journalists, those former employees have found themselves with a choice: Do I return to a staff job with some of the same problems, do I leave the profession altogether or do I try something different? Needless to say, some choose the final option, embarking on a path of self-employment with its own pros and cons. (I should note that I am one of them.)
One big problem is that it’s hard to find a universal definition of what constitutes a freelancer. Is a freelancer someone who writes one story a month for a publication? What if they write one story a day? Can they be a weekend editor for a legacy magazine, working double-digit hours every week for the same client?
Depending on whom you ask, self-employed status is a blessing or a curse. An employee generally gets employer-sponsored health insurance, sick leave and a defined schedule. A freelancer theoretically sets their own hours, figures their taxes and can work for as many clients as they want. But for some, the freelancer title is simply a way for news organizations to relegate them to a lower status, foisting on them all the responsibilities of an employee with none of the benefits.
For decades, the Department of Labor’s test to determine a person’s employment status remained the same — that is, until a recent Trump administration rule. The U.S. Department of Labor relied on a multi-factor “economic reality” test to determine whether someone was an independent contractor or an employee under the Fair Labor Standards Act. This test looked at the permanency of the relationship between the contractor and the principal, otherwise known as the client, whether the services provided were an “integral part of the principal’s business” and the “nature and degree of control” of the work by the principal, among other factors.
But it is the employer who often controls these decisions, making the test both subjective and able to be manipulated. In just the last six months, the Labor Department has unearthed a number of companies misclassifying employees as contractors, in one case leading to almost $180,000 in recovered back wages.
“There is tons of misclassification. It’s a significant problem,” said Cynthia Estlund, a law professor at New York University specializing in labor and employment. “It’s made worse by the fact that the tests are so mushy—lots of multifactor balancing. There are some cases in which it’s genuinely difficult to figure out and employers can manipulate the tests because some of the factors are in the control of the employer.”
The Trump-era rule was meant to clarify the economic reality test in a few key ways, including noting that “economic dependence” is defined by whether a worker “is in business” for themselves or “is economically dependent on a potential employer for work.” It prioritized the control the worker had over their work and their opportunity for profit or loss in determining their independent contractor status, ultimately making it easier for employers to define employees as independent contractors.
That brings us to where we are today. While the rule was only published in January 2021, it was delayed and then withdrawn by the Biden administration in May of that year. But in March 2022, a district court vacated the decision, putting it into effect. In the hopes of determining a new rule, the Labor Department led a series of public forums in June. And in early October, the proposed rule was announced: It would largely maintain the former status quo by reinstating the “economic reality” test without giving additional weight to any one factor.
“Legitimate independent businesses are a vital part of our economy. Yet we continue to find employers that break the law by misclassifying construction workers, home health aides and even, as one recent case illustrates, valets and car washers at car dealerships as independent contractors,” said spokesperson Edwin Nieves in a previous statement via email. “We are committed to ensuring that employees receive the protections the law provides.”
The proposed rule comes at a time when the distinction between freelancers and independent contractors is already in contention. In 2019, the California Legislature passed AB5, further codifying the controversial “ABC” test as a way to determine whether a worker is an independent contractor. The test essentially assumes that anyone working for a company is an employee unless they meet all three of these requirements:
- They are free from the control and direction of the hiring entity in connection with the performance of the work.
- They perform work outside the usual course of the hiring entity’s business.
- They are customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed.
For journalists, the bill originally stipulated that more than 35 “content submissions” to one media organization a year solidified them as an employee. It led some media organizations to part ways with wide swaths of their freelance writers from California. At SB Nation, for example, that meant paring down more than 200 freelancers to a number of full-time and part-time staff roles.
Parts of AB5 were eventually walked back, including enacting an amendment with various exceptions for different industries, like striking the 35-article requirement, and Proposition 22, in which voters declared that rideshare and delivery drivers were, in fact, independent contractors. (The latter was later struck down by a Superior Court judge.)
But last year, the tenets of AB5 got bigger traction with the Protecting the Right to Organize Act, known as the PRO Act, a U.S. House bill that would have instituted the ABC test on a federal level through the National Labor Relations Act. The policy eventually passed the House but didn’t go further.
Although the Labor Department ruling appears to leave things relatively unchanged, some still wonder what the future might hold. Future successful legislation could echo the tones of AB5 and the PRO Act, suddenly leaving a number of freelancers to rethink their careers as newfound part-time or full-time employees.
For the freelancers who stand to be affected by any policy change, there’s fear and promise, depending on their perspective. Kim Kavin, for example, is firmly on one side — opposed to any changes that make it more likely she’ll be considered an employee rather than an independent contractor. She’s the co-founder of the grassroots group Fight for Freelancers USA, which describes itself online as “self-employed professionals fighting to remain our own bosses.”
“People are playing a very big game of chicken with millions of freelancers’ lives,” she said in advance of the Labor Department’s rule change.
Journalists like Kavin don’t want to return to what they see as the daily doldrums of full-time employment. They don’t want to go back to the icy depths of an office where they have to report to someone and follow a schedule.
“After 20 years of being my own boss, how’s that going to go with me having to report to an office?” Kavin said. “I’m like a feral dog and they want me to be an indoor cat.”
California freelance journalist Maressa Brown started the group California Freelance Writers United in the wake of AB5’s passage. Brown chose to go freelance in part because she wanted to live somewhere other than New York, often considered the American media epicenter and where she had been based. More importantly, she wanted to have the flexibility to work from home and work for a variety of clients. The dream of ascending the media career ladder was something of the past, a dream from “junior high,” so unlikely that it practically didn’t even exist, she said.
She was shocked the moment she learned of AB5 — at that point, she had been making around six figures for a number of years. Perhaps more importantly, she’d built a stable of journalism connections who depended on her as a trusted contributor for regular work. It took her only three weeks into January to break the 35-stories-a-year rule with a regular gig at Parents. The outlet had to make a decision: make Brown a part-time employee or stop her at the 35-story cutoff. Eventually, they chose the former, but it wasn’t a given.
Other freelancers might take a different lesson from Brown’s situation. They might ask: should any freelancer be writing more than 35 stories a month for any given publication and not be a full-time employee? Isn’t that the very definition of a permalancer? Can that ever not be predatory towards the freelancer?
Eric Thurm is an organizing member of the Freelance Solidarity Project, a union that was formed to improve conditions for freelance media workers. FSP started after a number of journalists helped to found unions at their respective media organizations, took buyouts and eventually went freelance. With that came the realization that working for yourself lacked some of the broader labor protections that came from a union.
“Very often people will be working jobs that are technically supposed to be 35 hours but they are expected to work more,” Thurm said. “You’re expected to do the work of a full-time employee but you’re being denied healthcare and all the things that would make it easy for someone to have a better quality of life.”
Yet even the workers we might consider disenfranchised by the gig economy — like Uber drivers — don’t necessarily see it that way. A number of surveys, both those conducted by Uber and those conducted by independent researchers, found that a majority of Uber drivers wanted to be independent contractors rather than employees, primarily citing flexibility and the ability to decide when they were on and off the clock. What the gig economy offers in freedom, it lacks in the basic necessities required to survive.
“There is a real problem with a world in which so many people are left outside this structure on which we have built so much of what people need for a decent life,” Estlund said. “I call it the fortress of employment — we built this fortress and now it’s crumbling.”
But Kavin and Brown suspect that the push for more independent contractors to become freelancers isn’t just about workers’ rights. It’s about the labor movement and increasing union membership, they say. Union membership in 2021 dropped to 10.3% of the entire U.S. workforce, consistent with 2019’s record low, according to numbers from the U.S. Department of Labor. Still, newspaper unions have had numerous recent wins — in the last 10 years, employees at news organizations have started more than 200 union drives, according to July 2021 numbers cited by Poynter, more than 90% of which were successful.
“It’s a very exciting time to be in labor, but it’s not like America is a good place to be a worker or a good place to be organizing in a lot of different respects,” Thurm said. “We feel very strongly that the rising tide lifts all boats and that we should be interested as workers in better working conditions for everybody.”
For now, it seems that the latest proposed rule change has only reinitiated the status quo. But labor organizers remain enthusiastic that there might be a different future, a better future, for all freelancers and for all workers. It’s just that not all freelancers agree on what better means. To Thurm, the goal is finding some sense of guaranteed stability.
“The ideal ‘version’ of the future of freelancing would be a world where you can do independent contract work but it is no longer precarious,” he said. “You are not dependent on one or two $500 checks to pay your rent or pay your medical bills.”