In early February, Rep. Bobby Scott (D-Va.), with dozens of cosponsors, introduced the Protecting the Right to Organize Act (PRO Act) of 2021. Backed by labor unions, opposed by industry groups, and dubbed by Jacobin the "most ambitious labor law reform bill in generations," the PRO Act has chiefly gotten attention for its import for union organizing. But that's not all the bill does.
The PRO Act is also concerned with how freelancers like me are classified as workers. As written, it's intended to force companies to hire us as employees — with all the benefits, like insurance and vacation time, that entails — rather than as independent contractors. That won't happen. If this legislation passes as-is, it will instead destroy my livelihood by making all my work contracts illegal.
Needless to say, I'm against it. And I'm worried, because the PRO Act has enthusiastic support within the Democratic Party, which controls both houses of Congress. Worse yet, President Biden has explicitly endorsed the exact part of the bill that would put me out of work.
That part is called the ABC test. It's a legal doctrine dating to the 1930s (when it was supposed to improve factory conditions) which is used to determine whether a worker is properly classified as an employee or contractor. Here it is as it appears in the PRO Act:
An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless —
(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
(B) the service is performed outside the usual course of the business of the employer; and
(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed. [H.R. 842 via Congress.gov]
A worker must meet all three criteria to be an independent contractor. The sticking point for many is (B). The writing I do here at The Week, for example, is very much inside the company's usual course of business. The Week's business is journalism, and that's what I do here. Therefore, if the ABC Test becomes the law of the land, I might no longer be able to write for The Week (or the other publications I regularly contribute to).
Writers and other self-employed creatives aren't the only workers whose careers would be dismantled by the PRO Act if the record of near-identical legislation in California is any indication. In 2019, California passed A.B. 5, a labor law that also used the ABC test. The law was targeted at ridesharing apps like Uber and other companies with similar gig economy business models. Yet its effects were far broader.
As I wrote at the time, Californians contracting in a wide range of industries — graphic designers, videographers, interpreters, nail techs, rabbis, long-distance truckers, court reporters, musicians, and dozens more — vehemently opposed A.B. 5's restrictions on their work. The version that passed had some concessions to their lobbying, but not nearly enough.
For example, writers were allowed to keep contracting with media outlets if they didn't sell any single outlet more than 35 articles a year, a piddling number the law's author admitted was "arbitrary" and which didn't take into account obvious differences in length or effort (a 200-word news item was classified the same way as a 10,000-word cover story). On my current schedule, I'd hit that cap at The Week this spring, after which I wouldn't be able to write here again for the rest of 2021.
Suffice it to say, my finances would suffer, and so would my career trajectory. I like the way I work now because I can explore different topics with different audiences (the readerships of Christianity Today, Reason, and The Week are not identical). I can also scale my weekly workload up or down as needed to accommodate unusual circumstances, like landing a book contract. If I become a single company's employee, all that freedom and convenience will be gone.
This past September, after eight months of legal battles over the 35-article limit and constrictions like it (during which time "more than 30 cleanup or repeal bills" were introduced in the state legislature), California modified A.B. 5 with A.B. 2257, exempting freelance writers, foresters, youth sports coaches, real estate appraisers, and others from the ABC test entirely. Then, in November, Californians approved a ballot initiative to allow even Uber drivers to be classified as independent contractors once again. A.B. 5 isn't entirely gutted, but the state is clearly moving back toward its previous legal environment for independent contractors.
When he endorsed the ABC test as a candidate, however, Biden didn't bother to mention those crucial details. He touted California's disastrous experiment as a success story to be replicated at the national scale. "States like California have already paved the way [toward protecting gig economy workers] by adopting a clearer, simpler, and stronger three-prong 'ABC test' to distinguish employees from independent contractors," the Biden campaign website said. "The ABC test will mean many more workers will get the legal protections and benefits they rightfully should receive. As president, Biden will work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws."
The possibility that he'll keep this promise is what scares me. If the PRO Act passes, the ABC test will not protect me as a worker. It will harm me. It will derail my career and drastically reduce my income. And it will do the same for millions of other Americans in the many lines of work I've mentioned here — including many medical workers filling in at hospitals overwhelmed by COVID-19 cases.
There are 15 million people in the U.S. who freelance fulltime and 59 million who did at least some independent contracting in 2020. Per data from the U.S. Bureau of Labor Statistics, three in four independent contractors (including me) don't want traditional employment. We are happy as we are. If congressional Democrats and the Biden administration truly care about workers, they'll respect our choice of how to work.