From Making a Living Writing:
[T]here’s a very real threat to American freelancing coming — and now is the time to organize to defeat it.
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For starters, let me introduce you to the proposed labor law that’s part of President-elect Joseph R. Biden’s platform: It’s known as The PRO Act (Stands for ‘Protecting the Right to Organize).
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The point of the bill is to clarify who is an independent contractor and who’s an employee. Luckily, you don’t have to wade through reams of legalese to get to the big problem for freelancers: The ABC Test it contains that is the proposed federal definition.
It’s right on the first page. Here’s a screenshot:
If you’re a copywriter, you should be OK here. You’re writing for a widget maker, and their primary product isn’t marketing copy. It’s widgets.
But that point “B” of the ABC Test poses a barrier to any freelancer writing for a publication. Articles are the core, ‘usual’ business of that employer. If you’re writing articles for them as a freelancer, you flunk the ABC Test.
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If you’re wondering, this ABC test for who’s an employee and who’s a contractor dates from the 1930s. There’s a more recent test for telling freelancers from employees that dates from the 1980s, and it was created by the Internal Revenue Service.
It’s been being used for tax purposes for decades — and freelancers feel it’s the rule that should be used in The PRO Act, instead of the ABC Test.
In essence, the IRS rule says independent contractors have multiple clients, and do work on their own schedule, at their own place of business, with their own tools. It’s a simple definition that’s served to clarify freelancing for decades, in tax filings.
Then, along came Uber and Lyft, and an increased focus on the ‘gig economy.’
Unions soon pointed out that it could be considered worker exploitation for drivers to risk their lives — letting strangers get into their cars which might also crash and injure them — without even the protections full-time employees enjoy, such as paid healthcare. (Though the drivers themselves said they prefer to stay freelance.)
Lawmakers started looking for ways to compel the app-based companies to make their drivers into employees, and the ABC Test reared its ugly head. (Read on below for how that worked out in California.)
Something you may have missed: The PRO Act already passed the U.S. House of Representatives, nearly a year ago. With a Republican-controlled Senate, however, the bill stalled didn’t become law.
Now that Democrats control both houses and we have a Democratic incoming president, The PRO Act is back on the table for 2021.
. . . .
Three states have put forward labor laws with the ABC Test as their guide: California, New Jersey, and New York.
California’s Assembly Bill AB5, passed in September 2019, hit freelancers out of the blue. It wasn’t publicly debated, and implementation was immediate. The result was chaos — and a lot of journalists losing freelance jobs.
To sum up a very, very long story, here in bullets is the California legal arc:
- Sept. 2019: AB5 implements the ABC Test. Freelancers lose work, as confusion erupts over who can hire what sort of writer when. Particularly onerous for reporters: A specific, 35-piece limit provision that makes it impossible to be a freelance weekly columnist.
- Sept. 2020: AB2257 amends AB5. Scores of carve-outs and exceptions for dozens of industries soften the damage from AB5, including removal of the 35-article cap for writers. But problems remain, including a rule that freelancers must have a contract before working. That’s difficult to pull off if you’re a journalist, photojournalist, or videographer rushing to the scene of a protest or fire. Activists note this rule amounts to an assault on independent journalism and results in the suppression of news, as all news organizations have long relied on stringers or freelancers to get news their staffers can’t access.
. . . .
Freelancers continue to press for full repeal of AB5, to resolve the confusion these three separate, and in some ways conflicting, pieces of legislation have wrought. The American Society of Journalists and Authors (ASJA) is among the organizations suing for repeal.
“AB2257 made some things worse, with provisions that only apply to freelance writers, no other type of freelancer,” notes Jo Beth McDaniel, a freelance writer who chairs the First Amendment committee for ASJA.
California’s AB5 dropped on freelancers as an unexpected A-bomb (partly because it had no public comment period). When New Jersey and New York floated similar bills after AB5 passed, Kavin says, freelance journalists were ready for them.
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“When we explained how we earn a living, and how well many of us earn,” Kavin says, “they were flabbergasted. And once they learn it, they don’t want to cause us harm. When we don’t speak up, then they just hear from those who say we’re being exploited by the gig economy.”
Link to the rest at Making a Living Writing
PG notes that he hasn’t read any of the legislation described in the OP, but does acknowledge that legislators sometimes do dumb things because they don’t understand a great deal about the complexities of the American economy.
And, in many cases, organizations hiring lobbyists to push for various types of legislation are similarly clueless about all the different ways people operate and earn their livings within a free-market (or quasi-free-market) economy. They have an itch to scratch and are so focused on the interests of their supporters, they don’t consider how proposed legislative language might impact those who have lives and economic interests that are much different than their supporters have.