PRO Act: Injuring Workers to Protect Them
The legislation brewing in Congress may seem innocuous. It even has a benevolent name: Protecting the Right to Organize (PRO) Act.
After President Joe Biden endorsed it last week in his presidential address to Congress, you’ll be hearing more about it in weeks to come.
However, unless its poison pill is removed, I hope it withers on the vine. That’s because the PRO Act includes the same dreadful definition of independent contractors as California’s Assembly Bill 5.
That’s the law that cost California-based freelancers work and caused such a stink legislators later passed a string of exceptions to it.
The Pandora’s Box it opened is known as the ABC test to determine who is a contractor:
A: The person is free from the control and direction of the hiring entity.
B: The person performs work outside the usual course of the hiring entity’s business.
C: The person can show they are customarily engaged in an independent business via such means as an LLC or business banking account (thank goodness I’ve had one for years).
If it were to become national in scope, part B could have serious consequences. AB-5 has caused serious damage to freelancers in California and elsewhere. I call that injuring workers to protect them.
Granted, the PRO Act is an effort to protect workers from employers who try to skate on paying benefits by classifying them as contractors. However, one of its unintended consequences is interfering with those of us who want to retain our independence.
Interpreted the wrong way, the B prong of the ABC test could mean I couldn’t edit a book for a publisher because this work falls within the publishing industry. The PRO Act will also have a chilling impact on freelancing in general, as pointed out by this article in Forbes.
This is serious stuff, with 57 million Americans freelancing. That’s nearly one-third of the workforce.
The PRO Act’s ugly potential can be seen by what happened in California. A freelancer I know was humming along, writing short articles for a company. Then came AB-5 and it stopped sending her work, fearing she could be reclassified an employee.
It wasn’t just firms in California; anyone doing business there had to abide by the law. Thus, publishers elsewhere stopped hiring California freelancers. Some entrepreneurs had to close up shop because of the inability to operate without freelancers.
I ask: should we extend this disaster nationwide?
As with all controversial legislation, this isn’t a black-and-white issue. Groups like the Authors Guild support it. Conversely, the Editorial Freelancers Association (of which I’m a member) has raised red flags of concern.
Indeed, the ruckus generated such a flood of back-and-forth emails and opinions that a G-mail folder I set up to track them is stuffed full.
There are articles like this one that say the PRO Act will transform labor relations for the better, not kill freelancing.
On the other side are folks like the avid supporter of President Joe Biden’s election, who spoke out recently against the PRO Act.
“The bill could end my ability to be my own boss, set my own hours, and otherwise live the American worker’s dream,” said author Judi Kettler.
I share Kettler’s concern. Some pro-labor voices claim we freelancers are upset about nothing. One has posted several impassioned emails lately in a freelancers’ group, claiming the PRO Act has no resemblance to AB-5.
I remain skeptical. When government starts meddling, problems follow. Damaging independent contractors’ ability to obtain work like California did is hardly a prescription for economic renewal.