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How one independent contractor built his photojournalism career – and might lose it because of California’s AB 5

Nov 16, 2020 by AFP

Brian Feulner, a California-based photojournalist, fears his state’s anti-independent contracting law could handcuff him to an employment status he tried — and shed — years ago: a full-time employee.

Brian earned his college degree in photojournalism in 2005 and soon put his education and skills to use in California’s newspaper industry.

He was employed by small newspapers at first, and then worked his way up to some of the nation’s largest. He managed to weather the recession that eviscerated the newspaper industry and paid off huge student loans that came with following his dream.

It wasn’t until Brian landed a photo editor position at a prominent California newspaper that he realized full-time employment simply wasn’t for him.

“I wanted a chance to be in control of my income and to choose the type of work that I wanted to do. I wanted to follow the path of being an independent photographer,” recalls Brian.

So, after several long years working for someone else, Brian left the large-market newspaper on good terms and began freelancing for them as often as he could.

The role changed from manager back to photojournalist. “And I loved it,” he says.

The benefits of being an independent photojournalist

Today, Brian is based in San Francisco and runs his own business. He sets or negotiates his own rates and hours, deducts major expenses from his taxes, and has a diverse portfolio of clients that range from TripAdvisor to eBay to the San Francisco Chronicle. Breaking away from the traditional employer-employee workplace model enabled Brian to branch out into another passion: videography, which he considers a calling to artistically capture and share amazing stories with the world.

USA Today, for instance, is one of my video clients,” explains Brian. “It’s different than a big production because it’s literally a one person, backpack journalist-type thing. But the quality is more beautiful. It’s more focused on really good visuals than a regular news story.”

Another valuable benefit of freelancing is copyright ownership. As a newspaper staffer, copyright law awarded the copyright of all Brian’s work to his employer. As a freelancer, Brian himself owns the copyright, meaning he can relicense his work and earn additional income.

“I am a hardworking independent contractor and I enjoy this lifestyle,” Brian explains. “It’s work that isn’t hurting anyone, it’s a service that helps fill a need, and allows people’s voices to be heard through my journalism.”

Then there are the personal benefits of calling one’s own career shots. Brian’s flexibility allows him to maximize time with his young daughter. (The beach and the city’s iconic Mel’s Drive-In restaurants are among their favorite hangouts.)

Unfortunately, it’s all slipping through Brian’s fingers.

How California’s new law undermines the careers built by independent contractors

A California law known as AB 5 that took effect January 1 forces companies to reclassify most freelancers as employees. Aimed at regulating the employment status of independent contractors who drive for ride-sharing companies, the law also roped in freelance journalists and photographers, subjecting them to nearly impossible thresholds to stay independent.

One threshold involved a content limit so severe it instantly chilled the state’s entire freelance journalist industry. Under AB 5, photographers, photojournalists, news writers, editors, and newspaper cartoonists were required to cap their submissions to each publisher at 35 per year. Anything more would force companies to reclassify them as employees — that is, put them on the payroll and incur costs such as disability insurance, workers comp, and unemployment taxes.

Freelancers turning in that 36th article or photo or column would, in turn, become employees and thus subject to employment taxes, employer rules, and workplace regulations.

The content cap alone meant far fewer assignments for many freelancers like Brian who easily cleared upwards of ten monthly assignments per client. But one additional, bizarre requirement of AB 5 also forbade photographers and journalists from shooting video while freelancing for news organizations — a direct blow to Brian’s livelihood, as freelance video projects for a San Francisco newspaper represented nearly one-third of his income.

Lost income, limited options, and less ability to speak the truth

Under AB 5, Brian faces two choices: convert to employee status to continue producing video for a news organization (if the organization is willing to hire him and pay all of the additional costs), or stop producing videos. Either way, he loses a significant chunk of income and the freedom he enjoys running his own business.

“Right now, I’m not really doing any news assignments,” Brian says, adding that other factors such as the coronavirus pandemic have exacerbated the situation. “But everything dwindled down in the beginning because of AB 5. I lost most of my news clients, and I definitely struggled for the first three months.”

Brian was able to land COVID-related loans from the federal Paycheck Protection Program and Small Business Administration that kept his finances afloat. But he went from making and saving money for his daughter’s college to a paycheck-to-paycheck existence. Several months later, clients such as TripAdvisor have gone away. Still, Brian’s entrepreneurial hustle and professional reputation enabled him to keep busy every day.

A fierce public outcry from freelance journalists and other gig workers prompted some token legislative tweaks and exemptions that stripped AB 5 of its content cap and lifted some video restrictions. Enough rules and limits remain in place, however, that Brian is reluctantly assembling a limited liability company to protect his livelihood, and he’s in serious discussions with his fiancée about leaving California altogether.

“My parents live on a lake in upstate New York, though there’s no city so I’d have to completely rethink how I do everything,” he says. “We’ve also thought about Oregon, Utah, and Montana. So yeah, we’ve definitely had the conversation a lot — as do most Californians.”

Like Brian and other independent workers are beginning to learn, Covid-19 is no longer the biggest threat to their livelihoods — it’s their own government. Piecemeal legislative fixes won’t address the overarching problem of how freelancers can survive economically under laws like AB 5.

“Most photojournalists have a passion for visual storytelling, and they want to make a difference by spreading truth in the world,” says Brian. “I’ve always felt like nobody can take that away from us. But AB 5 says, ‘OK, you’re not allowed to share that voice anymore unless you work for someone else.’”

“I’ve worked too hard to turn my passion into a business that allows me to call my own shots and live life on my own terms” he adds. “I would lose it all if I became an employee again.”

Take action to protect the freedom and flexibility of independent contractors like Brian.