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San Diego is ground zero in the fight over how to classify workers across the state thanks to Assemblywoman Lorena Gonzalez. She introduced legislation earlier this year intended to codify a California Supreme Court ruling that sharply limits when a business can classify a worker as an independent contractor.
Much of the coverage of AB 5 has spotlighted its potential effect on strippers — they organized a “bikini protest” outside Gonzalez’s office — and members of the gig economy. The original lawsuit centered on delivery drivers.
But the bill could also make freelancing in all kinds of industries difficult, if not illegal — including journalism. That means what little coverage of North County still exists could be under threat.
When the Union-Tribune bought the North County Times in 2012, then-publisher Doug Manchester promised to “super serve each and every market in which we enter.” Instead, he merged the two papers into one and laid off a third of the North County Times’ staff, depriving residents of a competitive and dominant source of news.
Seeing an opportunity, the Encinitas-based Coast News expanded further into inland North County in 2014. Today, the company’s three regional editions boast a collective circulation of more than 100,000 readers, but almost every story is produced by a freelance reporter — at a rate of $75 to $100, depending on the length and placement on the printed page.
The court case that Gonzalez is attempting to codify into state law, Dynamex Operations West v. Superior Court, found that workers can be considered an independent contractor if they satisfied all three of the following criteria: they’re free from the control and direction of the company, they perform work that the company doesn’t normally do and they’re customarily engaged in the same services elsewhere.
That second test will be particularly hard for a freelance reporter to prove, considering that they sell news to news outlets.
In her comments to the Assembly Committee on Labor and Employment, which approved AB 5 last month, Gonzalez provided an example of who would be affected under the bill: a trucking company with technically no staff on the books could no longer say its drivers were contract employees, but it could continue to hire an outside mechanic to repair the machines.
Gonzalez has called the misclassification of workers a form of “wage theft,” and she has SAG-AFTRA, a union representing the journalists at KPBS, in her corner. But she’s also argued that the state is being harmed when workers aren’t paid a living wage because the government makes up the difference through assistance programs.
“While calling a worker a contractor is cheap for the company, someone has to bear those costs and, in most cases, it is the taxpayer that is forced to subsidize this business model,” she said.
The Coast News’ associate publisher, Chris Kydd, whose father launched the paper from his garage in 1987, said he sympathizes with Gonzalez’s rationale and acknowledged that he can’t pay his freelancers enough to live without other sources of income, but he’s got a small business to run.
Kydd said he complies with state employment law as it currently stands. He doesn’t, for instance, assign reporters stories, because then he might be accused of exerting inappropriate control over their professional schedules. Instead, the paper collects pitches and signs off on the stories they’d like to see written.
If the Coast News were forced to shed its half-dozen freelancer reporters and bring on a couple as staff, the paper’s overall reach would likely be scaled back. That’s a problem for citizens as well as journalists who, like me, regularly rely on the Coast News to attend city council and school board meetings and report back on major decisions and sources of tension.
Kydd said he’s learned to adapt over the years and could do it again if AB 5 passes. “But it wouldn’t be without a major sacrifice on behalf of the current employees,” he said. “I’m afraid it would put unfair pressure on them.”
The California News Publishers Association is lobbying Gonzalez to give freelance reporters and photographers a carve-out. Exemptions already exist in AB 5 for surgeons, investment advisers and other professionals.
“We know it’s not going to be an easy task and we know that organized labor is going to look at any potential exemption very skeptically, as they should,” the group’s general counsel, Jim Ewert, told me. “But the newspaper industry is different than just about any other industry.”
That doesn’t mean the industry should get a free pass on the laws currently in place to protect workers, Ewert said, but he sees AB 5 as an “existential threat” to small weeklies that showcase a variety of voices and allow communities to make informed decisions.
Indeed, one recent study published in the journal Urban Affairs Review found that when local newsrooms are decimated, fewer candidates bother to run for mayor and fewer voters turn out in elections. There’s also evidence to suggest that municipal borrowing costs and pollution tend to go up when no one is watching the decision-makers.
“Now more than ever, people rely on accurate information, quality information, about what’s going on around them,” Ewert said. “It would just be a travesty to lose that.”
Randy Dotinga, a former North County Times reporter who contributes to Voice of San Diego, is taking a slightly different tack. The former president of the American Society of Journalists and Authors, he’s part of a coalition of writers and photographers who argue that freelancing has been good for them and they don’t need anyone’s protection.
“We act like small businesses, we make good money,” he said. “I’ve been a freelancer 20 years full time.”
Dotinga shared with me a rejection letter for a story he pitched last year to a local media outlet. That letter doesn’t mention the Dynamex case, but it declines to commission Dotinga’s piece by vaguely referring to recent changes in labor law. The Columbia Journalism Review also reported last month that Northstar Travel Media, a New Jersey-based company that produces travel industry trade journals, has stopped working with some California freelancers.
While Dotinga sympathizes with the argument coming from the state’s news publishers, he doesn’t think it’ll get very far with a Democratic Legislature that’s cozy with unions. Instead, he wants to engage lawmakers in a discussion about “what makes me different than somebody who’s being taken advantage of, like an Uber driver.”
To get started, he said, his coalition reached out to a major labor group in Sacramento and was told they should write an amendment to AB 5 themselves and submit it, even though they have no experience writing policy.
“We don’t have budgets for lobbyists,” he said. “We don’t have budgets for people who understand legislation and can write it. We’re in a position of flying blind to save our careers.”
The Assembly Appropriations Committee, which Gonzalez chairs, will consider AB 5 on Thursday.
Understanding Those Who Hate
In response to the deadly shooting at Chabad of Poway synagogue, elected representatives and advocates gathered in Carlsbad to promote peace and call for an end to violence and anti-Semitism.
The rally was organized by Carlsbad Mayor Pro Tem Priya Bhat-Patel, who suggested a task force with other elected officials and community members. That group, she told me, could propose new legislation and partner with schools and health boards to increase access to youth behavioral health services.
That is a laudable goal. But we shouldn’t lose sight of the fact that terrorists are often educated people who’ve shown no signs of mental illness. While I understand the urge not to dwell on the perpetrators of mass violence, because it provides the glorification they seek, we need to recognize, as I argued in my last newsletter, that their system of belief is vile but also coherent and consistent.
In a new opinion piece, Scott Lewis makes the case that the Poway shooter may have arrived at the scene alone, and pulled the trigger alone, but was part of an increasingly organized terrorist network that is refining its techniques and ideology as it pursues an armed fascistic insurgency.
- The U-T explained how that ideology has spread online, how white supremacy arrived in San Diego in the 1920s to target Mexicans and how the region has a long history excluding Jews and other minorities from exclusive neighborhoods.
The County’s Leadership and Priorities Are Changing
Consider the last three months. San Diego County opened a building to asylum-seekers, dipped into reserves to bankroll affordable housing projects and explored developing a government-run energy program.
For a governing body that has for decades been defined by its conservatism, Lisa Halverstadt reports, that’s a major shift.
But it’s not just coming from the new Democrat on the Board of Supervisors. Chairwoman Dianne Jacob, a Republican who was first elected in 1992, laid out a long list of priorities she wants to tackle before she is termed out next year — and that includes reforming the county’s behavioral health system.
Now that Supervisor Kristin Gaspar is seeking re-election, District 3 is among the top races to watch in 2020. The outcome is likely to determine which party controls the Board of Supervisors. Controversial votes often come down on a 3-2 vote. In a special podcast, Gaspar explained why she’s decided to settle in at the local level rather than run for Congress.
Separating Law Enforcement from Immigration Enforcement
More than a year since California’s so-called “sanctuary law” went into effect, not all police departments have rewritten their policies reflecting its changes. The San Diego Immigrant Rights Consortium, a coalition of advocacy groups, has been evaluating those policies and determined that only two local law enforcement agencies had included all of SB 54’s requirements.
One was the Escondido Police Department. That’s surprising because the city has had a reputation for collaborating with Immigration and Customs Enforcement. But it scored the highest of all local agencies when it comes to SB 54 compliance. Escondido prohibits, for instance, personnel from sharing resources with federal immigration agents but they still, in some cases, work in the same spaces.
I asked Police Chief Craig Carter if he believed that SB 54 is an impediment to his officers doing their jobs, and he said no.
“Anybody who is here illegally and just trying to do better for their family is not what I’m looking for,” Carter said. “I’m looking for the predator who’s taking advantage of the community — those with criminal backgrounds and charges, they should have the scrutiny of ICE. And I think most people would agree, including those in the immigrant community. As long as I can get those bad actors, if you will, out of the community, I think we all win.”
Sheriff Bill Gore expressed a similar view last year.
Other Stuff We’re Working on
- SANDAG is one of the most important agencies in the region, responsible for planning, transportation, and research. Its top official is transforming the role of executive director from a behind-the-scenes consensus-builder to an iconoclast. And in the process, he’s facing pushback from elected leaders in North County and East County.
- The California Department of Education accused the Escondido Union School District of attempting to dodge laws capping student-teacher ratios for special education teachers by simply renaming certain positions. In response, the district used taxpayer dollars to initiate a lengthy court battle.
- We also took a closer look at the work of San Diego’s state delegation and put together a list of the bills that would only apply to our region. For instance, AB 1413, written by Assemblyman Todd Gloria, would let several San Diego transit agencies, including the North County Transit District, propose new taxes for part of the area they serve rather than all of it.
In Other News
- SANDAG celebrated the completion of three projects as part of the larger North Coast Corridor program, a 40-year effort to repair and expand rail, vehicle and pedestrian transportation infrastructure throughout the county. (Coast News)
- Encinitas is officially opposed to a state bill that would allow developers to bypass local zoning rules and build taller and denser buildings near major transit stops. Mayor Catherine Blakespear said SB 50 “would change the character of our community too much, too quickly and limit our ability to control our land use.” (Coast News)
- Unofficial results from Solana Beach’s special election show that voters have killed a senior-care apartment development. The vacant site would have been rezoned to accommodate as many as 99 beds. “It’s a nice idea, it’s just the wrong place,” said the president of the neighboring homeowners’ association. (Del Mar Times)
- Oceanside’s planning commission has twice opposed a plan to build 650 homes, a boutique hotel and commercial space. They say preserving the rural nature of South Morro Hills, which lacks the necessary infrastructure, is important. (Union-Tribune)
- Despite being legal in California, the marijuana industry is still at the mercy of local jurisdictions. CityBeat considers the Del Mar Fairgrounds’ resistance to allowing marijuana products on-site.
- Faced with ballooning pension costs, Escondido is mulling a local sales tax increase, but City Council members are reluctant. (Union-Tribune)
- San Marcos Unified School District administrators estimate that the newly negotiated pay increases for teachers will widen the budget deficit by about $16 million. The superintendent is already predicting “tough choices in the future” unless the state Legislature boosts funding this year. (Union-Tribune)
- The Department of Defense Inspector General’s Office concluded that law enforcement officials at Camp Pendleton and other military bases around the country are not consistently following requirements when investigating domestic violence. (Coast News)
- A case challenging a legal doctrine that gives police broad deference during use-of-force incidents is over. A federal appeals court has concluded that Escondido police did not violate the Constitution when they tackled an unarmed man in 2013. (Coast News)