The ABC Test's presence in the bill is creating an unwarranted fear of labor law.
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
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.
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.
Actually, the The PRO Act is step one toward making California’s ABC Test the
basis for all labor, employment and tax law (the three areas you can be classified as an
employee or an independent contractor). In California, the result of this plan was to outlaw most
independent contractors. President Biden campaigned on making the ABC test the basis in ALL
three areas of law. The PRO Act aims to amend the first of these areas, the National Labor
Relations Act. If you can’t pass the very narrow ABC test, then you are classified as an
employee under the NLRA. That means you can unionize or be forced to unionize if the other
employees want to. It does not necessarily make you an employee under the Fair Labor
Standards Act, which governs employment law. The FLSA currently does not use the ABC test. PRO Act supporters argue that you can still be an independent contractor under employment law. In the last legislative session, however, U.S. Senator Patty Murray, who heads the Health, Education, Labor & Pension Committee, introduced a bill to include the ABC test in the FLSA. Murray is also a primary sponsor of the PRO Act. These bills are intended to work together, toward the goal of making the ABC Test the basis for ALL federal labor, employment and tax law.
On the Biden website you can find this information, which shows that the plan is to apply the ABC test, which will in fact destroy many small freelance businesses as we saw in California: As president, Biden will work with Congress to establish a federal standard modeled on the ABC test for **ALL** labor, employment, and tax laws.
I am actually pro union and want to see truly misclassified workers protected, but the ABC test needs to be replaced with the IRS which works perfectly fine. It's not just freelance writers who are vocally opposed to this. There are groups for financial advisors, English as a Second Language teachers, independent truck drivers, freelance photographers, and many many more. You're just seeing a lot of post from writers because... they're writers.
Oh, and freelancing can be a MUCH more stable career than W2 situations. With a diversified client base, if you lose one client you won't be in trouble unlike getting laid off from a W2 job. .
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?
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:
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.
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.
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.
@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
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?
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.
Every now and then I return to this post just to read the comments again. Love it.