Legislation update: The PRO Act passes the House and is now in the Senate

About Jeanne Erdmann and Kendall Powell

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.

Congress

Photo: Bodo Tasche via Flickr

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Critics say the test is too outdated and that it could be easily misapplied to employment situations outside the PRO Act, which could again prove devastating to freelancers and the outlets who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:

Additional information can be found:

2 thoughts on “Legislation update: The PRO Act passes the House and is now in the Senate

  1. Stephen Beale

    This is a good analysis, but it should be noted that the PRO Act is not the only proposed federal legislation that would impose the ABC test. In the last session of Congress, two Senators and one House member introduced the Worker Flexibility and Small Business Protection Act, which comes much closer to being a national version of California’s AB5. But unlike AB5, it does not include any exemptions. In the press release announcing the bill, the authors stated that it would “create a new standard where workers are always presumed to be employees,” and that it would impose a “strong ‘ABC’ test.” It seems likely that it will be re-introduced in this session of Congress (that’s what happened with the PRO Act).

    Earlier this week, AFL-CIO President Richard Trumka tweeted some talking points repeating the assertion that the PRO Act is only about union organizing. I tweeted back this question: “Will you cease further efforts to impose the ABC test, such as the Worker Flexibility and Small Business Protection Act?” Not surprisingly, he did not respond. The Biden-Harris campaign website states that Biden intends to make the ABC test a standard in “all labor, employment, and tax laws.”

    I count myself as a progressive on most political issues, and I’m generally supportive of organized labor. I can only hope that they see reason and abandon this effort.

    https://www.help.senate.gov/ranking/newsroom/press/-murray-brown-delauro-introduce-landmark-bill-expanding-labor-laws-to-protect-workers-

  2. Lisa Fields

    Thank you for publicizing this issue for other journalists who will be affected by the PRO Act with the ABC test language, including freelancers/independent journalists and the newsrooms who work with them. Here in NJ, we successfully kept the state legislature from passing their own version of California’s AB5 in late 2019, so this topic has been on my radar for a long time.

    A couple of points:
    * Senator Schumer did not write in a blog post that the ABC test would not be a part of the Senate bill. Rather, when Senator Schumer was in a video call with the Freelancers Union, which was live-broadcast on YouTube, Schumer said that he was aware of problems in California and would work to address concerns in the PRO Act. But he has committed to nothing regarding ABC, and he has done nothing about it.
    * The PRO Act version of the ABC test copied California’s AB5 legislation language, but California did not originate the ABC test; it has been used nationwide since the 1930s.

    People who call or email their Senators should say that they oppose the PRO Act while it contains ABC test language and can suggest the IRS test as an alternative.

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