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I was just coming here to say this, but far less eloquently. The issue is that the legislation isn't standalone. Together with other legislation, it's intended to permanently change the definition of an employee.

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Hi Artemis. I just read your response. Very thorough with valid points. I just became aware yesterday of this issue coming up this week in the House. Your last two paragraphs would be excellent to educate Members of Congress in both the House and Senate.

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Not anti-union. I have worked with Unions for probably longer than you have been alive. Worked for NLRB early in my career. Some Unions do a lousy job. So quit blaming the laws and union busters for why they don’t appeal to workers. Unions need to sell and justify their services. Just my two cents

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Most businesses (to the extent that unions are businesses, which isn't really an accurate depiction anyway) aren't forced to allow people who want to bankrupt them to propagandize, threaten, and retaliate against anyone who dares to buy their services.

People want to buy unionism. The surveys on this are very clear. They are afraid to because they know that if they buy it, they will suffer direct or indirect retaliation for doing so.

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People want value for what they are purchasing.

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Okay, and the value of what they are purchasing is set, in large part, by the legal standards that accompany the purchase. No one pays money to buy the book rights for a work in the public domain, because those rights are worthless.

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Dear Brandon, I got a vehement email today that the PRO Act is going to ruin freelance writers' careers, along with foreboding Facebook posts. The argument is that the ABC test, contained in the PRO Act that will reach the House Floor this week, will have the same disastrous effect as AB5 did in California. What is your response to that comparison? I am a life-long, pro-union Democrat, but I am also working right now to set up my own freelance writing business as a sole proprietorship. Thank You.

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Hey Marian, there's a major difference. Imagine two laws, Law A and Law B. Law A applies to employment status, wages, benefits, and overtime. Law B applies to unionization. If Law A passes, it will affect employment status, wages, benefits, and overtime in ways that could alter the relationships between workers and their bosses, or clients. If Law B passes, it *only* affects workers trying to unionize.

The PRO Act is Law B. Unlike AB5, which used an ABC test to determine employment status and other things in general, the PRO Act *only* uses it to determine who can unionize. So while they both use ABC Tests, they use it for completely different things. While the ABC test is mainly known from AB5, it's actually a common test used in many states for all sorts of things, such as determining who gets unemployment insurance. And in none of those states does it have any affect like AB5.

I am also a freelance writer so this is super important to me as well. It sucks that AB5 went so badly for freelance writers, but fortunately the PRO Act is a completely different thing that will not effect my status as an independent contract in any way, *unless* 51% the the contractors at one of the places I do business with decides to unionize. And even, I would just be a freelancer who's also in a union, just like, as Brandon says, many SAG-AFTRA and IATSE members are currently. It's a complete win-win for freelancers, who gain a new right, without any risk of jeopardizing or altering their employment status the way AB5 did.

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Dear "ch", Thank You for writing. Your response sounds as if you are not worried about the PRO Act having a detrimental effect on freelancers' businesses. Have you seen the Facebook page "Fight for Freelancers USA"? I was just made aware of it this morning in the email I received, which came from a writing instructor I deeply respect. You have to ask to join the Group to see the posts. They are very foreboding about the effect the ABC test in the PRO Act will have on freelancers' businesses.

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HI Marian, I have seen it yeah. Fortunately, they are misunderstanding how the ABC Test works. As Brandon describes in the article, the PRO Act's ABC Test only applies to unionization.

To be honest, it feels like they are just seeing the words "ABC Test" but not looking at how it actually works. Just because something has an ABC Test doesn't mean it will reclassify employees the way AB5 did. Many states have ABC Tests that only apply to specific areas, like unemployment insurance, and do *not* reclassify the employees the way AB5 did. The PRO Act is another one of those.

So no, I am not concerned at all. They are concerned about the PRO Act doing something that it doesn't do.

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Hi ch. I wish the comments you wrote here could be posted to the Facebook page. They are making the case that the ABC test in the PRO Act is a 1930's standard that doesn't belong in the 21st Century. Freelancers are frantic that the disaster of California's AB5 will now become law at the federal level.

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We already know Brandon's take. The problem is that it misses the larger picture. Together with the other planned legislation, the PRO Act would permanently change the definition of an employee. Many happy and successful independent contractors would lose their businesses and livelihoods.

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Hi Jen. Thank you for writing. I appreciate your response. I see you are in the "Fight for Freelancers" Facebook Group. I just became aware of the Group yesterday morning and joined. I wish the Group could see this whole thread. You, Jen, sound well educated on this issue, and you probably know the PRO Act is on the House Rules Committee agenda for tomorrow and will reach the House Floor later this week. If Brandon is wrong and the Group is right, a lot of educating of Members, in both the House and Senate, needs to be done. I am sure Congress, or at least the Committees of jurisdiction, are aware of the disaster of AB5 in California and how the Legislature had to pass follow up legislation, AB 2257, for example, to give exemptions to AB5. And now, as we endure the pandemic, with so many people out of work and we are trying to rebuild, the timing of this could not be worse. When you refer, in your response, to "other planned legislation" what bills are you referring to? Since this is Sunday, please write back only when it is convenient for you. I'll be in and out today. Thank You again for writing, and have a good day.

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Isn't your argument (the same as the unions) moot though, because the test still makes companies liable to comply with the abc test or else it's considered in violation of the NLRA? Even if it doesnt directly legislate all misclassification it forces companies to comply with this test eventually, or else not bother hiring ICs. I don't get your argument, as much as I'd love to stop fretting.

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Also please do not comment on the stability of freelancing. I was fired from a so called "stable" w2 job because I had to raise my kid who was frequently sick. Freelancing has given me a more stable income even during a pandemic because I, and many mothers and people with disabilities and more, require full flexibility. That was a very insulting and incorrect statement for people who have no other option.

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Also very insulting and incorrect for people who have other options but choose to start their own businesses.

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It would be a good idea for the sponsors of the legislation to address this issue directly, and state explicitly that the PRO Act will not prevent media companies from using freelancers. Couldn't CRS do an analysis?

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I understand the point being made here, but it concedes far too much. There's simply no reason to believe that employment status is inconsistent with flexible work, for the reasons that Ben Sachs has repeatedly spelled out at the OnLabor blog:

https://onlabor.org/enough-with-the-flexibility-trope/

https://onlabor.org/uber-employee-status-and-flexibility/

https://onlabor.org/ubers-flexibility-myth-reprise/

The "this is going to kill freelancing!" claims are just a pack of lies being spread about (and, to a large extent, by) employers who are voluntarily choosing to shut down their own scofflaw operations rather than follow the law, then blaming those shutdowns on lawmakers. Nothing-- nothing-- about employment status is inconsistent with what is today currently known as freelancing, except insofar as those "freelancers" aren't nearly as free to cheat on their taxes (which is the predominant employee-side motive for independent contracting).

The ABC test should absolutely be part of all employment laws.

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This is the correct take.

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Excuse me, it is so difficult to try to listen to the arguments of someone who suggests that people with legitimate concerns are liars and tax cheats. Perhaps you know people who thought they could be "freelancers" but did not have the aptitude. Lots of people are better off working as employees than as sole proprietors of a business. Those of us who have run our own solo businesses for 30+ years (full-time, well-paid, tax-paying, law-abiding... in other words, successful businessfolk) are legitimately concerned about the notion that the ABC test might become the definition across employment, labor and tax law, as President Biden's own platform calls for. Some workers are definitely misclassified but the text of the ABC test in the PRO Act, which is EXACTLY the same as the text in AB5, throws the baby out with the bathwater. Legislators really can't come up with a 21st-century definition? Or even a late 20th-century definition? One that actually helps the misclassified, unlike the ABC Test, which you will find ended up not even applying to the supposed beneficiaries at places like Uber.

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The only part of this that isn't vague special pleading is the claim that "you will find" that the ABC test did "not even apply[] to the supposed beneficiaries at places like Uber," which is simply a flat-out lie, e.g.:

https://www.fordharrison.com/california-appellate-court-affirms-preliminary-injunction-requiring-uber-and-lyft-to-reclassify-california-drivers-as-employees

You know, if the arguments for freelancing were so strong, it's quite remarkable that a thread as small as this one would be filled with such a pack of easily disprovable lies.

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So it applied to them, then they got a special referendum passed through massive expenditures on political propaganda, and now it doesn't apply to them anymore because they are specifically exempted from the application of the ABC test which would otherwise make their drivers employees.

Yeah, I'm sticking with "pack of lies" here.

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So from here the assumption seems to be that it is always better to be a union employee of a company or a trade group than a sole-proprietor small business. But this is America, land of "pull yourself up by your bootstraps", promoter of entrepreneurs and small businesses, where merit is supposed to matter and we who chose to start businesses operate in competition with other businesses. What is the reason for insisting that such small businesses be defined as... not small businesses?

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I’m sorry but literally everything about this take is misguided. No one who has both freelanced and been a W2 employee labors under the delusion that the latter is as flexible as the former. Labor blogs not withstanding.

And there are very good, logical reasons why this is so.

https://twitter.com/pianomanesq1111/status/1290317370838286339?s=21

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None of the "reasons" you cite are even remotely accurate. First, you are simply wrong that employee status requires timekeeping; piece-rate payment is explicitly allowed under the FLSA so long as the total amount paid breaks minimum wage. Second, timekeeping in this day and age is trivial, literally amounting to a click of a button on an app. Third, rest and meal breaks, vacation and sick leave, and health insurance are not required benefits under the FLSA.

Given that your thread explicitly establishes that you're a union-busting liar, I think it's safe to discount any further claims made here.

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There are strict laws as to breaks, vacations, etc, etc. that all kick in once a person is an employee.

You're the one promoting ignorance and lie. Look up the labor law. Millions of freelancers have looked into the differences and know exactly what's required. You don't.

No one is trying to bust the unions. They just need to stop trying to muscle into territories they don't belong.

Plus "Third, rest and meal breaks, vacation and sick leave, and health insurance are not required benefits under the FLSA."

So you're saying, the very thing that is the justification for the unions existence and the reason why the ProAct is being proposed, isn't even required after its passage?

Can you hear the words coming out of your mouth? lol

The unions need to hire better shills.

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Unfortunately, both the premise and the conclusion of this article are false. An ABC test for the purpose of unionizing only? When you really examine that idea and take it to its logical conclusion, you’ll see that this is just a slightly more indirect, but just as inexorable, way of forcing independent contractors into W-2 employment.

https://twitter.com/pianomanesq1111/status/1370450709204799488?s=21

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We understand the law just fine. We know what it implies. We know what effect it will have on our careers. Not jobs. Careers. We know the effect it will have on our taxes. We know the effect it will have on our ability to gain work, set our schedules, create opportunities. All of it.

The unions are a failing anacronism of the previous century, long past their relevance, and that is no more clearly represented by it's dwindling numbers. In a last ditch effort to regain it's financial and political power base, it has fallen back on the 1930's ABC test.

Collective bargaining in the US an other countries is an adversarial process, and has a long history of corruption and ties to organized crime. Freelancers, 57 million of them in the US, contributing 1.3 trillion to the US economy, want no part of that poisoned well, nor see any need to pay into the union dole to finance the union's now failing pension funds, political donations, and loans to organized crime.

Thank you for freelance-splaining to all of us, what we think, and continuing to further the false narrative that all freelancers have heard for the last year. "Oh, it's not a big deal, you just don't understand.

Are our taxes going up 60 percent a big deal?

Are our work schedules being dictated to us a big deal?

Is the fact that both women's and African American leaders have come out against the ProAct as racist and misogynist a big deal?

Is claiming the previous laws were "outdated," overturning decades of labor law, sending the courts into turmoil and placing the burden of creating new case law entirely on the backs of small businesses a big deal?

Please. For any one reading this. Everything he's saying is a lie. But it is informative as it illustrates almost every union talking point we've seen in the last year.

Brandon: Tell your bosses. They're not getting one dime of our income.

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@Brandon Magner, Great explainer. I'm planning to write in-depth about the PRO Act, to help dispel some misconceptions, including some you touched upon. I'd love to send you some interview questions via email. Please email me and let me know how to get in touch directly. Thanks. anita [@] anitabartholomew.com

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So I am not so much concerned about the reclassification as I am about a return to paying union dues that I don't want or support. As a teacher I was so relieved to get to stop paying union dues a few years ago with the Supreme Court ruling. I disagree with everything the CTA and NEA say and do and I think they have mostly harmed our students in California for decades along with protecting horrible teachers. I am politically opposed to their every stand. (And spare me the 'you can request that your dues only be used to fund the non-political activities' line. Money is fungible!) So if 50% + 1 want to unionize are the rest of the employees forced to pay union dues? I will never need to rely on the union to keep my job and if they continue to negotiate like they have in my district for the past few years--giving away the district offer for something I like LESS, no thanks! Who will be forced to pay the dues with this new law?

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Great explanation, Brandon. I'm an independent contractor and I do not fear the PRO Act. I welcome it as a way to ensure businesses can no longer take advantage of employees by pretending they are not employees and preventing their right to unionize. If all business treated workers fairly, refused to allow environmental degradation by their business, insisted on workplace safety, acted fairly in the marketplace, etc., there would be no need for laws to regulate them. Sadly, the problem is that many businesses' sole goal is to maximize profit with little regard for the outfall for their shortsighted disregard for anything else.

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Every now and then I return to this post just to read the comments again. Love it.

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