The Right to Organize Act threatens the freedom of millions of independent contractors at a time when Americans need most freedom and flexibility in their employment. The PRO Act was recently reintroduced after it was not passed in the previous Congress. With Democrats who control the House and Senate, and with the support of President BidenJoe BidenThe Hill’s Morning Report – Presented by Facebook – Biden Delivers 100 Million Shots in 58 Days, Cans to Neighbors Advocates Advocate Transparency in Facilities for Migrants in Biden The Memo: America faces a long war on extremism MOREIt is only a matter of time before the PRO Act has priority.
Before that happens, however, lawmakers should learn the lessons learned from the California Assembly’s 2019 passing of Bill 5.
Among other things, the PRO Act would amend the National Labor Relations Act to redefine who is considered an employee for the purposes of that law. The new definition would adopt the “ABC test” – a relic from the 1930s recently adopted by California that requires a rigorous three-part test to determine whether an employee is an employee or an independent contractor. A person must be classified as an employee unless:
“(A) the person is free of control and instruction in connection with the provision of the service, both under the contract for the provision of the service and in fact; (B) the service is provided outside of the employer’s normal course of business; and (C) the person is ordinarily engaged in an independently established trade, occupation, occupation or business appropriate to the nature of the service being provided. ”
It is crucial that all three elements are met so that an employee remains independent. If you fail a pen then you must be considered an employee. While parts “A” and “C” of the test are intended to prevent employers from deliberately misclassifying employees as contractors, part “B” of the test does not fit into modern times.
Look at journalists. Rather than sticking to a single publication with assigned beats, editors, and deadlines, and enduring the stress of an ongoing cycle of layoffs and cuts, many former writers have forged successful careers as independent contractors. As a freelancer, they can write for multiple publications on topics and angles of their choice and work as much or as little as they want. Therefore, most freelancers can easily pass parts “A” and “C” of the ABC test.
However, the “B” part of the test is unsatisfactory for authors who create the product, releases releases in the normal course of business. The same goes for musicians, comedians, actors, scholarship holders, graphic designers and countless other professionals who have built themselves into successful micro-businesses. Similarly, gig workers who fill up their free time or fill their schedules with a couple of hours of driving for Uber or Lyft lose that freedom under the “B” tine of the ABC test.
In 2020, California’s AB 5 law went into effect, introducing the ABC test into all aspects of California labor law. However, even California lawmakers recognized that the ABC test would hinder many workers, and included numerous exceptions to the law, which was selected through a frenzied lobbying process.
Such an exception applied to writers and journalists, but only for up to 35 submissions per client per year. However, if the limit of 35 submissions was reached, a freelancer would have to be hired from Publishing as an employee or more likely to stop producing content for that point of sale. But rather than triggering a return to newsrooms overflowing with journalists, the law quickly resulted in a devastating loss of work and income for freelancers.
Weekly columnists became bi-weekly columnists; Photographers and writers covering some small local publications were quickly nearing the 35 submission cap and not converting to staff (even if that option was available – in most cases, it wasn’t – the vast majority of freelancers don’t want to be staff .) You stopped working with these publications for the rest of the year. Some publications that were either unwilling or unable to meet legal requirements simply stopped hiring freelancers in California.
For the unfortunate many who didn’t even get a limited exception, the pain has been widespread. From small theater companies to music festivals, transcriptionists, interpreters, real estate appraisers, software consultants, and others, the examples of lost jobs are too numerous to track down. Many contractors left California on the run from the effects of the ABC test. Those who stayed suffered the loss of flexible work when COVID-19 struck.
Due to the relentless outrage, California lawmakers were forced to amend AB 5 in 2020, creating dozens of additional exemptions. Some of those still working on the ABC test can at least leave California if the exposure turns out to be too high. But when the ABC test becomes the law of the country, there is nowhere to run.
Instead, the legislature should shy away from the outdated and impractical ABC test. A unified model of work proved to be a disaster in California, and Congress should not duplicate that disaster nationwide.
Caleb Trotter and Jim Manley are attorneys for the Pacific Legal Foundation, which conducts litigation nationwide to win legal victories and enforce the constitution’s guarantees of individual freedom. Follow them on Twitter @nolatarian and @ManleyLiberty.
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