Recently, the House passed the PRO Act (H.R. 842 Protecting the Right to Organize Act of 2021). This legislation is described as a bill that protects workers’ right to organize, but there’s an issue of particular concern to freelancers — and editors and publishers who hire them.

The bill is now with the U.S. Senate. Freelancers in many areas including independent screenwriters, photographers, songwriters, models, accountants, and financial advisers are most concerned because the legislation uses California’s ABC Test to decide who is an employee and who is an independent contractor.

Under the, ABC Test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:

• The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
• The worker performs work that is outside the usual course of the hiring entity’s business; and
• The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The second point above (“Prong B”) is proving most worrisome to freelancers because it would mean that a company whose product is news and content would not be able to use freelancers as independent contractors to produce news and content.

The ABC Test is already a part of the California labor law AB5 and this proved devastating for freelancers. The legislature had to pass another law to add multiple exceptions and carve-outs for many types of freelance workers. There is no such exception in the PRO Act.

There’s a lot of conflicting information about what the PRO Act does and does not mean, and also whether it will or won’t pass the Senate. Supporters of the legislation say the ABC Test will only apply in cases where workers seek the rights to organize or collectively bargain under the National Labor Relations Act (which the PRO Act serves to update).

Critics say the test is too outdated and that it could be easily misapplied to employment situations outside the PRO Act, which could again prove devastating to freelancers and the outlets who hire them across the nation. And, they argue that there are better ways to distinguish exploited gig economy workers from those who choose to be independent contractors, including using the more nuanced IRS test. Many of us worry that what happened in California with AB5 will be played out on a national level.

The issue is far from settled. Senate Majority Leader Charles Schumer wrote in a blog post that the ABC Test will not be part of the Senate bill, but President Biden campaigned on including the ABC Test.

The issue is also not black and white. While several professional organizations, such as the American Society of Journalists and Authors, and the Author’s Guild, support the rights of workers and their proper classification, they worry that the PRO Act as it is written could prevent freelance journalists from working and earning a living.

In a recent post the ASJA writes, “In this context, the American Society of Journalists and Authors, Inc. opposes legislative efforts to restrict the ability of independent writers to work as they choose without governmental interference. … The American Society of Journalists and Authors, Inc. opposes the use of the ABC Test to classify workers in this and other legislation.”

We encourage freelance members, as well as editors who work with and depend on freelancers, to reach out to their Senators, the sponsor of the bill, Senator Patty Murray (D-Wash.) and Schumer (D-N.Y.) to explain how the ABC Test could negatively affect your work as a freelancer.

You can find additional information on these posts: about AB 5 and previous updates on these AHCJ posts:

• New bills could hinder freelancers’ work in 2020
• Freelance journalists sue California over new AB 5 law
• What you need to know about freelancer legislation in 2020
• Legislation update: AB 5 may exempt freelance writers but PRO Act passes

Additional information can be found:

• American Society of Journalists and Authors
• Fight for Freelancers
• The Authors Guild on the PRO Act and the ABC Test
• Statement from the Editorial Freelancers

Jeanne Erdmann (@jeanne_erdmann) is a member of AHCJ's board of directors and is chair of the freelance committee. Freelance science writer Kendall Powell (@KendallSciWrite) covers the realm of biology, from molecules to maternity.