FAQ: The PRO Act and Freelancers

As freelancers, we have heard some very worrying claims about the PRO Act. So we took our questions to labor law experts, to find out what the PRO Act will and will not do for independent contractors.

I’m a freelancer and I don’t want that to change! What does the PRO Act mean for me?

There is a lot of talk about the PRO Act and what it does for independent contractors, also known as freelancers. There are many people who support workers rights and are pro-union, but are worried about losing their "freelancer" status, and the flexibility, control, and working conditions that they currently enjoy.

Below are some reasons why you should not be scared of the PRO Act, the ABC test, or the right to form a union.

What is the ABC test and what does it have to do with the PRO Act?

The PRO Act is all about protecting the right to organize. The idea is that workers should have the right to decide whether or not they want to be a part of a union with collective bargaining rights.

The problem is that many workers are not considered "employees" under current labor laws; they are treated as "independent contractors." They are essentially small businesses of one, and do not have the right to unionize. Some people who are currently classified as "independent contractors", such as freelance writers, really do fit that definition. This includes people who do occasional jobs in their trade or industry, and people who work for many different clients without one main one.

But millions of so-called "independent contractors" are actually employees, who are getting screwed out of certain unionization rights by virtue of misclassification.

According to the Economic Policy Institute, between 10 and 20 percent of employers in the country have misclassified at least one worker. This includes a third of construction workers in the South, and many truckers, whose treatment is so awful it is too hard to summarize. Because labor laws are vague and easily broken, workers who are clearly employees get treated as "independent contractors," losing out on the right to unionize.

The ABC test is a list of three criteria to determine whether someone is truly an "independent contractor," or if they are in fact an employee who has been misclassified. If you pass the ABC test, you are an independent contractor. If you do not, you are an employee.

Wait! That’s what AB5 did in California, and companies decided to cut all their freelancers!

The key thing to note is that the PRO Act only applies to unionization rights. It is an amendment to the National Labor Relations Act, which has nothing to do with healthcare benefits, minimum wage, or employment rights.

If the PRO Act’s ABC test says you are an employee, it does not mean you cannot get paid as or work as an independent contractor – it means you cannot be denied the right to unionize as an employee.

In fact, even if you do unionize, which will only happen if a majority of workers with the same employer vote to do so, you can still be an independent contractor under your state’s employment law. This is basically how it has worked for many freelance members of unions like SAG-AFTRA and IATSE for years. They are independent contractors who retain the flexibility many freelancers value, while also getting benefits and protections through their union membership.

Okay, so the PRO Act doesn’t create a national ABC Test for employment. But isn’t this a slippery slope to doing one?

No! Passing the PRO Act would give you the option to form a union. No more, no less. It  does not touch the Fair Labor Standards Act or any other employment law. It focuses solely on unionization rights.

Opponents have claimed that putting the ABC Test into one, specific area of the law is the first step in a master plan to put it into every area of employment law. But since long before the PRO Act or AB5, many states have used targeted ABC Tests for specific areas, like unemployment insurance, and the only change it has ever caused for freelancers is to allow some of them to collect unemployment benefits. The PRO Act is just the latest law to use a targeted ABC test for a specific thing, in this case the right to form a union.

In fact, opponents of the PRO Act even admit this. One of the anti-PRO Act talking points is that the ABC test is a "1930’s" test not fit for today. Well, if targeted ABC Tests have been around for 90 years and we are still nowhere near the kind of nationwide, all-encompassing ABC Test scenario they are describing, how slippery a slope can it be?

What if I fail the ABC test?

Congratulations. You now have a new right: the right to form a union. It does not mean you have to form a union, and it does not mean anything will change at your workplace; it is just another tool in the toolbox to advocate for your rights as you negotiate with your employer over the conditions of your work, which could include anything from wages, to agreements legally requiring prompt payment.

Okay, this sounds good. But why do I see all these freelancers saying the PRO Act will take away their jobs?

A few reasons. First, the PRO Act is an extremely comprehensive set of reforms that benefit workers, so the same corporate interests who fight against things like higher minimum wage are spending billions trying to stop it.

The problem they face is, the PRO Act is so clearly good for workers, it is hard to come up with any way to get workers to oppose it. So instead of trying to argue against what the law actually does, they seized on a particular term, the "ABC Test," that a group of people strongly associates with an actual bad outcome, and then put their money towards misleading people into thinking that any law that uses an ABC Test in any way will have the same outcome as AB5.

We hate to admit it, but it’s a very smart tactic. While "ABC Tests" are used in many states for many things, most people have only ever heard of it in the context of AB5, and most freelancers have only heard of it in relation to all the issues it has caused us. They are preying on our completely justified fears of an AB5 repeat, in order to turn us against a bill that is nothing like it.

Okay you convinced me, PRO Act doesn’t hurt freelancers. Does it help us?

Yes! If you are a misclassified worker, you can fight to change that and win better wages, benefits, and conditions. But even if you are not misclassified, or do not join a union yourself, you will still benefit. This is because, as unionization grows in an industry, it drives wages up for non-union workers in that industry as well. The same goes for the whole country: the higher the percentage of workers in unions, the more economic equality, higher wages and better benefits for every worker, union or non-union.

This is why groups like the National Writers Union and Freelance Solidarity Project, who are at the forefront of the fight for freelancers rights, support the PRO Act unreservedly. It’s why we do, to.

How can I support the PRO Act, as a freelancer?

One easy thing you can do is talk to other freelancers in your network who are concerned. This bill would give you a new right – the right to unionize, if you so choose. There are plenty of union contracts that include flexible hours, pay, and working conditions; putting that in a contract just means you no longer have to rely on the whims of employers, but can join together with your fellow freelancers to win a contract that puts it into writing.

But if you want to do more, you can show your support by signing Freelancers for the PRO Act right now, and fight to protect the rights of freelancers, employees, and every other kind of worker to organize, and fight together to build a better workplace, and a better world.