Episode 33: Freelancer Laws with Milt Toby
Milt Toby is an attorney and the president of the American Society of Journalists and Authors, an organization dedicated to helping independent non-fiction writers. Milt also serves as legal counsel for the American Horse Publications, and is a frequent presenter on publishing contracts, copyright and other legal issues affecting writers at AHP seminars and other national meetings. He’s also an author, and his latest book, Taking Shergar was named the best horse racing book at the EQUUS Film & Arts Fest in 2019.
Milt has been a great source of knowledge for the American Horse Publications community, as well as our Freelance Remuda group. I’ve learned so much from talking with him, and I hope y’all will too. Today we’re going to focus on some pending laws that may affect freelancers in the United States.
Before we kick off our legal discussion, what drew you to love speed horses and the sport of racing?
Milt grew up showing Saddlebreds in Central Kentucky. He has an undergrad degree in agriculture from University of Kentucky. He moved to Aiken, South Carolina, as a sports editor. It’s a hub for horse racing. He worked in Aiken for a year and covered horse racing. He then moved to Lexington and worked for The BloodHorse for 12 years. He’s been interested in horse racing ever since.
Practicing law is his 5th career. He’s lived overseas, he’s an attorney and has been the equine division chair at a university and president of ASJA.
For listeners that may be unfamiliar, can you talk about the laws that are either recently in effect or pending that are concerning for freelancers? I’m thinking of the California law and the one introduced in New Jersey.
Disclaimer: “Everything I’m discussing today is not legal advice and listeners should not take it as such. I am happy to answer questions, but I’m talking about hypothetical situations.”
Mischaracterization of workers as independent contractors when they should be employees is the issue in these new laws. In 2018, the California Supreme Court decided the Dynamex case addressing whether Uber and Lyft drivers should be employees. The idea is not a bad one, if you are doing what an employee does, you should be an employee.
When California decided to codify the Dynamex decision into law (AB-5), they expanded it. Instead of only looking at Uber-type independent contractor jobs, they decided to expand to all independent contractors and this includes freelancers. It paints everybody with the same brush. The provisions designed to protect independent contractors like Uber drivers also affects freelance writers and photographers.
It creates a default situation in CA where if you are an independent contractor in CA, you’re now an employee unless an employer can convince the labor cabinet in CA that you really are an independent contractor and it’s a hard test:
1. Establish that you’re not under the control and/or direction of your employer. 2. You’re doing something outside the normal course of business of your employer. This is the most difficult part of the three-part test because if you’re writing articles for a magazine or website, that’s the normal course of business for a publication. And 3. You’re engaged in an established trade or business of the same kind as that involved in the freelance work.
Exceptions for freelance writers and photographers: If you submit 35 submissions to a single company in a calendar year, you are still a freelancer. But if you submit 36 or more, the company is mandated by law to put you on staff as an employee. Publications can’t afford to do that in today’s economy.
Freelancers are suffering a loss of jobs from companies in CA because of this. It is problematic to be a freelancer in CA right now. This was happening before the law was signed in September 2019. This is why ASJA and the National Press Photographers Association teamed up to file a lawsuit.
In December, ASJA and the National Press Photographers Association filed a federal lawsuit challenging the constitutionality of California's new law (AB-5) that limits the work a freelance writer or photographer can do while remaining an independent contractor. Milt, you were a part of this effort. Can you comment on the status of the lawsuit?
We’re not arguing that the entire law needs to be repealed. We’re arguing about two parts: The exemptions carved out for freelance writers and journalists and photographers. We believe these two restrictions on what you can do violate the First Amendment, which guarantees the freedom of speech. And also, equal protections under the law, due to the 14th Amendment. This cap of 35 pieces does not apply to marketing positions.
December 17th, the group filed a complaint and then a motion for a preliminary injunction, which asks the court to prevent the enforcement of these parts of the law. It will not be heard until March, two months after the law took effect on January 1. They also filed a temporary restraining order to hopefully prevent the law from going into effect, but that was denied. So it is in a holding pattern.
Can you talk about the New Jersey law? How is it similar and what will be the effects?
Milt feels a republican-controlled state, will have less of a likelihood of these kinds of laws going into effect. For states with strong unions, these laws may be more likely to pass.
One issue he hasn’t heard much publicity about is that many freelancers who do not want staff jobs are female, minority, with a disability or needing to be caretakers. They told Milt when they were on staff, they felt discriminated against.
What else can be done about these laws?
Re: the lawsuit, the complaint included affidavits from a variety of freelancers talking about the work they have lost.
What can be done: The NJ law that was introduced was similar to AB-5 in California but more draconian—very few exemptions. Grassroots lobbying against this law was effective, and the law was not put to a vote during that legislative session. But a similar law has been introduced this session.
Get involved. In CA, a coalition was formed of writers’ groups that was influential in making a difference. the ASJA has good resources on its website. The website also has a statement opposing the AB-5 law that’ is helpful information.
There’s a bill similar to the AB-5 has been introduced into the House of Representatives and has over 20 sponsors. It may pass, and will then go on to the Senate, where it may or may not pass. It’s a strong democratic movement, and it’s not going to go away.
The problem is this is a well-intentioned law, but it’s too broad. It also affects taxation.
is there anything else coming up we need to be aware of?
The CASE Act - will create a small claims court for copyright claims. If someone has infringed on your copyright right now, you have to go to federal court, which is expensive, time-consuming, and you need an attorney familiar with copyright law. For a small claim it’ll be difficult to find an attorney to help you on contingency.
The CASE Act will set up a court within the copyright office. It may or may not pass, but it’ll be very important for anybody who wants to protect their copyrighted work.
Check in our Facebook Group for updates on these laws and the lawsuit!
Listener questions
If the legislation is meant to protect "contract workers" then I would like to know what is the definition of a "contract." If a freelancer, with an (IRS) recognized business, forms an agreement with a client, is that not considered a contract? Is one hiring "contract" devalued against another hiring "contract"?
Milt: This illustrates one of the problems of this type of legislation. They may be talking about people with an employment contract, but still referring to an independent contractor. The IRS has a comprehensive test to determine whether you are an independent contractor or an employee. Control over your work is the main indicator. A frustrating part of the legislation is, if there is a publishing contract, and it specifically says that the freelancer is an independent contractor and both sides agree, that doesn’t control for the IRS test. It’s one of the things the IRS takes into account, but it’s not the only thing. =
Typically, you can’t rely on a contract alone to establish employment status. Unfortunately it’s not just a decision between employer and contractor.
Can my book title be the same as a movie title or television series title?
Milt: My typical lawyer answer: Maybe! Copyright law says you can’t protect a title with a copyright, so you can have the same title as a movie or book or series. But if the title is protected by a trademark, then you would not be able to use it. There is a trademark office and a copyright office—you’ll need to search at both.
Purpose of a copyright is to protect your work. Purpose of a trademark is to prevent confusion between your work and another’s.
What can a freelance writer do when payment has been denied for them past 60 days?
Milt: The first question you have to ask is if there is a contract. If there isn’t a contract, than 60 days is an arbitrary time period that the freelancer has decided matters. Until the publisher is in breach of a contract, you have little legal recourse at all.
If you submit an invoice that says “payment due within 30 days of publishing” does that have any legal bearing?
Milt: It shows that you are trying to get paid and that you are establishing a time period for getting paid. If you have a written contract that guarantees payment upon publication, the agreement does not require that the publisher pay you until the article is published. If it is never published, which happens, you never get paid, and the publisher hasn’t breached the contract. You may send your article in and you send them an invoice with payment due within 30 days. But they’re not in breach of contract until the article is published and you are not paid. This is why a contract for “payment upon acceptance” of the article is better for there writer. That’s why the terms of the contract are so important.
An oral contract can be enforced in court, but it’s harder to do. Emails can be evidence of a contract. Past practices can also be evidence of a contract. But you have to establish you have a contract and what the terms are.
Sending an invoice doesn’t create a legal obligation to pay if the contract requires something else.
If you’ve been denied payment for 60 days and they’re in breach of your contract, you can do several things, in varying case of severity. You can continue sending invoices. You can have an attorney send a letter on letterhead. Or you can take the company to small claims court. This isn’t a copyright claim, it’s a breach of contract claim. This may or may not be worth your time or money.
Somewhere along the line you have to decide how much time and money it’s worth to you. And you’ll have to decide if you want to continue working with that company.
Does a freelance writer have any legal options to collect payment from a publisher who is in a different state than the writer?
Milt: You have the same options as the previous answer, but filing a lawsuit may be more complicated. Many contracts say if there’s an issue and it goes to small claims, you' may have to bring that to small claims court in the state in which the publisher is located. If you’re out of state that may not be worth your time or money.
Should a freelance writer be able to edit a contract they are asked to sign? Can they edit to include a late fee? If so, how can they work to get that change to stick with the company who issued the original contract in the first place?
Milt: You can try to negotiate anything you want on a contract. But it doesn’t mean you have a contract until both sides agree on everything.
The typical business agreement works out. You get an assignment from a publication, you do the work and they pay you. When a lawyer gets involved, it’s because something unusual has happened. You need to be prepared for the worst, and expect the best. Particularly when setting up business arrangements with a client. You should be able to expect to be treated how you’d treat them, but prepare for that to not happen. Give the problem some thought in advance, think about how you’ll handle it, and then you’ll be ahead of the game should a situation arise.
Go to ASJA.org for more resources about the pending and current laws, and lawsuits that affect freelancers.
About The Freelance Remuda
The Freelance Remuda was founded by veteran freelance professionals Abigail Boatwright and Kate Bradley Byars. Beginning with The Freelance Remuda Podcast, which explores the trials and triumphs surrounding life as a freelancer in equine media, while sharing valuable tips from equine media editors and creatives doing what they love; Abigail and Kate also offer a mentorship program for aspiring freelancers in equine media.
The dictionary lists a remuda as: re•mu•da (noun): a herd of horses that have been saddle-broken from which ranch hands choose their mounts for the day. The goal of The Freelance Remuda is to help train up a herd of professionals specializing in equine media, from which editors and businesses can hire to do great work. Find and subscribe to the podcast on iTunes, and for more information on The Freelance Remuda Mentorship Program, go to freelanceremuda.com.