Shortly after the House of Representatives passed the Protecting the Right to Organize Act, a sweeping labor-law reform bill, on March 9, freelance writers began expressing concerns about the bill, with op-eds appearing in The Hill, Forbes, and Business Insider. One such column, published in The Week, is representative of the genre.
“The federal labor legislation that will kill my livelihood,” reads the headline of the op-ed by freelancer Bonnie Kristian. As Kristian notes, “the PRO Act has chiefly gotten attention for its import for union organizing. But that’s not all the bill does.” The bill is also “concerned with how freelancers like me are classified as workers. As written, it’s intended to force companies to hire us as employees—with all the benefits, like insurance and vacation time, that entails—rather than as independent contractors.”
The problem is that this isn’t true: The PRO Act is not intended to change the employment status of freelancers, nor will it force companies to do so. But the fact that people like Kristian have taken up against the measure is not necessarily indicative of nefariousness or double-dealing on their part. There is widespread confusion over how the measure would ultimately impact the lives of freelancers, and a world of PRO Act opponents who are only too happy to exploit that confusion to further sow division. The divide-and-conquer tactics of pitting one set of workers against another has always been the go-to strategy of employers facing the strength of an organized workforce. The way the PRO Act debate is playing out among freelancers is a case in point.
Unlike employment laws such as California’s Assembly Bill 5, or AB5, the PRO Act only changes whether freelancers engaged in concerted activity are protected by the National Labor Relations Act—protections that 1099 workers currently lack. The PRO Act uses what is known as the ABC test to determine NLRA protection. Under the test, an individual is assumed to be an employee, and thus covered under the NLRA, unless their work meets three conditions: It is done without the direction or control of an employer; it is performed outside of the usual course of an employer’s business; and it is done by someone who has their own, independent business or trade doing that kind of work. If all three conditions apply, the worker is considered an NLRA-exempt independent contractor. The test’s inclusion in the PRO Act will grant millions more people, from rideshare drivers to construction and warehouse workers to freelance writers, government backing for their collective activities, in keeping with the NLRA’s preamble, which states that it is U.S. policy to “encourage collective bargaining.”
“Under current labor law, freelancers can form unions like ours, but our attempts to organize are not protected—and employers are even able to file legal charges against us for some of the very same activity protected for our W-2 colleagues,” explains the Freelance Solidarity Project. The FSP, a division of the National Writers Union, already organizes freelancers, but it does so without NLRA protections.
“We currently have to be very careful and creative because we have few labor protections under the NLRA or any other federal statute, and we potentially risk violating the Sherman Act and antitrust laws,” says David Hill, a full-time freelancer and NWU board member. “That’s a hindrance to us being able to be more successful.”
“The business community, the libertarian legal community, and the right wing that oppose labor efforts are using freelancers, stoking their anger by making them think that this is going to be a threat to our livelihoods,” says Hill.
The confusion on display in Kristian’s column comes from equating the PRO Act with employment laws like AB5. AB5 uses the ABC test to determine employment status for the purposes of employment law: Individuals who failed to meet the test’s criteria for being an independent contractor were thus covered by minimum-wage and hour laws as well as other protections. As the FSP statement puts it, this “became a pretense for employers to deny work to freelancers who were legitimate independent contractors.” But dozens of states currently use the ABC test in various capacities, and its inclusion in the PRO Act is toward an entirely different end.
“I don’t see how the passage of the law raises the cost of employment in and of itself. It doesn’t,” says Michael LeRoy, labor law expert at the University of Illinois at Urbana-Champaign.
LeRoy supports the PRO Act, which he sees as the antidote to 1947’s Taft-Hartley Act, which “gutted the NLRA and, with it, the middle class.” But an answer he gave in an interview on the subject was recently used in a Forbes column to argue the opposite position: that the PRO Act would lead to job losses. In the interview, LeRoy said that “the law would possibly limit work for women, retirees, college students and other similar demographics.” He tells The New Republic that the Forbes column misrepresents his views.
“When an employer is unionized, they typically don’t start hiring more people. They typically start freezing or reducing the headcount,” he says. In other words, it is employers who threaten jobs, he explains, not the PRO Act.
But opponents of the PRO Act take employer actions as immutable and impossible to combat. Rather than seeking to grow the pie, they guard their piece of it—though in the media industry, the more apt metaphor may be safeguarding one’s deck chair on a sinking ship. Unfortunately, people who don’t believe in the possibility of improving industry conditions make perfect pawns for the boss.
Americans for Prosperity, the Koch-backed think tank, is busily propagating the misinformation of the PRO Act’s use of the ABC test, churning out articles on freelancer opposition to the bill and urging visitors to its website to “Flex Your Independence” by signing up for its mailing list. A JD Supra article, written by lawyers who represent union-busting law firm Littler Mendelsohn, echoes the lie. Ditto the Chamber of Commerce, though it admits that “the ABC test is not exactly new”—a reference, perhaps, to the fact that the test is already used in dozens of states without issue.
“We have to ask ourselves if things are good right now, and if not, why not band together and consider the sources that benefit from us fighting with each other?” says Aja Arnold, a full-time freelancer and member of Democratic Socialists of America’s Freelancers for the PRO Act campaign. Arnold notes that the substance of the PRO Act, which aims to make it easier for workers to form unions, win contracts, and take on-the-job action, is widely popular in a country where worker power has long been under attack by employers. Employers’ associations and allied elected officials need allies who can provide less obviously self-interested reasons for opposing the bill. Freelance writers, some of whom enjoy prominent platforms, make a good partner, which is why we’re seeing the reunification of the AB5 alliance. “This is the one wedge they can find,” says Arnold.
If opponents of the PRO Act intend to weaponize these misconceptions of the bill as a means of preventing its passage, it’s all the more vital to get better information into the hands of white-collar freelancers. Such a brief would necessarily include getting the word out about how the bill’s use of the ABC test differs from that of current employment laws, as well as how it won’t have any effect on the segment of freelancers who operate more like small businesses and would thus be less likely to engage in collective bargaining. But an even bigger undertaking might be necessary: convincing freelancers that a better industry is even possible and that getting there requires the type of collective action protected by the PRO Act.
“It’s obviously not true that there’s no overlap between gig workers for Uber or Doordash and freelance media workers, but I do think there’s a gap there,” says Jillian Steinhauer, a full-time freelancer and FSP member. “Freelancing, especially in a creative or white-color field, encourages people to worry about themselves.” Steinhauer cites her own experience as evidence. “Before I joined FSP, I was more individualistic, but organizing with people has changed my view of what’s possible,” she explains. She’s signed “shitty contracts,” she says, and while a media company would likely be less inclined to offer her better terms simply because she asks them to, working with other freelancers greatly improves her odds. Indeed, FSP has already won several such agreements. As the organization put it in a statement supporting the PRO Act, “It’s scarcity that keeps us locked in place, fighting for the meager pay that defines freelance work, forced to accept the lack of safety net that’s sold to us as ‘independence.’”
It’s no easy task to get anyone, much less people in a field that runs on self-promotion and ruthless competition among workers, to believe in the possibilities of collective action. Many freelancers see themselves as professionals rather than workers. Forging unity for collective action among these workers will thus be particularly tricky. It’s a challenge that’s only more daunting if no one believes in the possibility of winning better working conditions.
“It’s normal for workers to start by thinking that an industry or employer will never change,” says Jane McAlevey, a longtime labor organizer and author of several books on the subject. “The very first step of organizing is to get into one-on-one conversations and raise people’s expectations so that they see they don’t deserve to live in paltry conditions,” she explains, but eventually, if you want to get people off the sidelines, “you need to lay out a credible plan to win.”
Wins build on each other, and with each success comes more evidence that change is possible through collective action. Decades of deteriorating working conditions in general, and the brutal contraction of writing jobs in particular, means it’s no surprise that many freelancers remain cynical about the prospects for change. That cynicism only leaves freelancers open to manipulation from employers’ associations that would like nothing better than to let writers fight their battles for them.
“The PRO Act is a manifestation of the idea that we need to open our arms wide to all workers because an injury to one really is an injury to all,” says Sara Nelson, the outspoken president of the AFA-CWA. It will take time to show freelancers that they, too, are workers who will benefit from such collective power. Even without NLRA protections, there are already organizations like FSP showing them that—such activities have only accelerated during the pandemic.
“For musicians, the really exciting part of the PRO Act is the repeal of the ban on secondary boycotts,” says Phillip Golub, a pianist and composer who is a member of both DSA and the Music Workers Alliance, an organization of independent musicians that has gained momentum as musicians’ revenue sources dried up over the past year. Golub, who notes the PRO Act will allow musicians like himself to retain the benefits of independent-contractor status, says that because secondary boycotts are currently banned under the Taft-Hartley Act, it is harder for musicians to target indirect employers, such as streaming services like Spotify.
“More often than not, the people writing us a check for what we do are also broke,” he explains, citing the example of a small-band leader who periodically hires him for session work. “The people with the real money are way upstream.”
In a recent statement in support of the PRO Act, the MWA calls it “the best piece of labor legislation since the NLRA in 1935,” noting further that while the bill helps creative freelancers like musicians and journalists, it “is also a good thing for the 10s of millions of misclassified gig workers such as delivery and rideshare drivers, and many construction workers.” This is an aspect that’s largely gone unmentioned in the wider discussion of the PRO Act’s implications for freelancers. While the bill would benefit them, the broadening of NLRA protections to these misclassified workers is a game-changer for a much bigger workforce: a universe that includes not just those in the gig economy, the construction trades, and warehouses, but also their counterparts in an expanding number of industries.
California rideshare drivers, who are already suffering the horrific consequences of the recently enacted and industry-penned Proposition 22, which excludes them from AB5’s protections, have rallied in support of the PRO Act. These workers are hardly the only ones who stand to benefit from the PRO Act. Misclassification, after all, didn’t start with tech companies. To name but one well-known example, FedEx famously undercuts UPS, its unionized competitor, by classing its drivers as independent contractors. The PRO Act will grant NLRA protections to these more traditional workers, as well.
“A painting company contracts with 20 or 30 independent contractors who are all painters, instead of hiring them as employees,” explains Ryan Kekeris, the communications director of the International Union of Painters and Allied Trades, the building-trades union that has led the charge to pass the PRO Act. Such contracting out “means none of them are allowed to collectively bargain because that is an antitrust violation,” explains Kekeris.
The PRO Act faces an uphill battle to win enough support to pass in the Senate. Asked how his union feels about the bill’s momentum so far, Kekeris says recent discussion of filibuster reform suggests progress but adds that success will require worker mobilization “We’re going to hit the streets and mobilize people to make sure this bill passes,” he says.
Jane McAlevey concurs, stressing that this is an important moment for the labor movement: “We’re at a strategic pivot right now: Are we, the working class, going to take a nosedive down or are we going to take this moment, coming out of the pandemic, to punch back as hard as we can and say that we never want to go back to the conditions we had before?”
