Two years ago, a beauty company in New York hired a freelance writer named Leigh to draft copy for products and advertisements. It was a part-time job with a 1099 contract that didn’t pay enough for her to turn down other assignments, and she wasn’t sure how long it would last.
Some months in, the company increased her hours to the point that she was essentially full-time. The job became her sole source of income and was no different from a regular employee’s. Yet the company still treated her as an independent contractor. She had no paid time off, no sick leave or 401(k), and had to buy her own health insurance. Then, at the beginning of the pandemic, she came down with what she hoped was just a vicious cold. She didn’t dare call in sick, consult with sympathetic co-workers or complain to her boss.
“I was a little scared to argue about my status,” she told me. “I didn’t have any power or leverage.” As a contractor, she was on her own: Freelancers have no right under current federal law to collectively bargain or organize with other workers for help. (Leigh recently became a W2 employee and asked that I use only her middle name, for fear of retaliation for complaining about her previous classification.)
The Protecting the Right to Organize Act is a radically worker-friendly bill that would give freelancers like Leigh a chance to fight for more. Its intent is to patch holes in the tattered cloth of the 1935 National Labor Relations Act, which gives most private-sector employees the right to come together and speak out about conditions on the job. Recently passed by the House and now bound for a skeptical Senate, the PRO Act would make it much easier for workers already covered by the N.L.R.A. to organize and pressure employers to improve pay and health standards. It would also give millions of 1099 independent contractors and freelancers the same right to organize that traditional W2 employees have, greatly expanding the universe of workers covered by the N.L.R.A. As a freelance journalist myself, I’m especially excited about this part of the legislation.
Should the PRO Act clear the Senate, independent cosmetologists working for the same salon chain could collectively negotiate for masks and air filters. Freelance content producers at a marketing firm could openly share their hourly rates to check pay across race and gender. Postproduction television editors could unionize to negotiate over hours. And freelance construction workers could protect themselves from retaliation for reporting sexual harassment. At the same time, the PRO Act would not bar independent contractors from determining their own hours or rates, writing off business expenses or keeping their copyrights. Nor would it give one state’s freelancers an advantage over another’s.
All the PRO Act would do is grant additional rights — which is why I’m surprised that not all freelancers share my enthusiasm for the bill. A vocal group of writers and consultants, many of whom identify as successful entrepreneurs, have denounced it, arguing that the move to fit non-employees under the N.L.R.A. could very well destroy “our” careers. They feel that they are doing just fine and don’t need the right to organize; they also reject the idea of being lumped in with so-called gig workers. But the reality is, all of us are vulnerable when we act alone.
Most independent contractors are not doing well. Our median income is just $32,000 per year, and many of us identify as part of a larger working class. “The vast majority of freelancers have no labor rights, are no longer covered by civil rights law or labor laws,” Larry Goldbetter, the president of the National Writers Union, told me. Those opposing the PRO Act “claim they’re doing better than ever and that our people are losers, basically,” he added.
What critics of the PRO Act object to, in particular, is its use of the three-pronged “ABC test” to broaden the right to collectively bargain. The test states that a worker hired by a company for a particular service should be classified as an employee unless she is free from the company’s control when performing that service, the service does not fall under the company’s main business and she has an independent enterprise that provides a similar service. It targets the enormous problem of misclassification — of employers choosing to call workers “contractors” instead of “employees” often to avoid paying them fair wages, providing health benefits and workers’ compensation or submitting to laws against discrimination and sexual harassment. As a result, states and the federal government lose hundreds of millions of dollars in tax revenues and employer contributions to unemployment insurance; workers and their families suffer when they find themselves ineligible for family leave or employer-provided health insurance.
The ABC test first drew public attention in 2019, when it was applied in California through Assembly Bill 5. That law went far beyond the PRO Act: It gave hundreds of thousands of “independent” construction workers, beauticians and Uber drivers, among others, the right to the hourly wages and protections of full-fledged employees. Yet this pro-labor victory was overshadowed by a backlash from mostly white-collar freelancers who worried about losing work.
JoBeth McDaniel, a California resident with the group Freelancers Against AB5, told me in an email that the law hurt a wide swath of independent contractors. She said she still hears “new horror stories,” representing just a “tiny portion of the blood bath out there.” Ms. McDaniel is also a plaintiff in a lawsuit that contests AB5 on First Amendment grounds, filed by the Pacific Legal Foundation, which fights for “the right to earn an honest living free from unreasonable government interference.”
AB5 Personal Stories, a website run by Karen Anderson, a freelance editor, features dozens of Facebook testimonials against the ABC test as applied in California. On the site, I found several accounts by people who said that they had indeed lost work. Yet many other stories were from individuals who predicted that they would lose work or who turned down some offers of employment because they didn’t want taxes deducted from their paychecks. Not quite a “blood bath.”
According to Ms. McDaniel, most news stories about the ABC test have focused on “unskilled workers” who, according to her, can easily leave their job if they are unhappy, while ignoring the impact on people like writers, licensed pharmacists, medical translators and court reporters. Her implication: White-collar freelancers should not be punished for the success they enjoyed before the ABC test came along. But my interviews over the years with dozens of Uber and Lyft drivers, health technicians, artists, tech workers and fellow journalists have shown me just how little separates the working conditions of blue- and white-collar freelancers.
O., a freelance software designer in the Bay Area (who asked that I use only his first initial for fear of losing work) told me that he’s had to moonlight for Uber and Lyft since 2014 to survive periodic downturns in tech. He supported AB5 but opposed Proposition 22, a subsequent ballot measure that allows Uber and Lyft to continue to treat their drivers as independent contractors. He now backs the PRO Act because “people need a union,” he said.
The lasting anger over AB5 has tainted understanding of the PRO Act, which amends only the N.L.R.A., and obscured the reality of contemporary work. Opponents of the ABC test tend to overstate both the flexibility of freelancing and the rigidity of W2 employment. In fact, thousands of unionized actors, electricians, art handlers, sound technicians and health care workers already have short-term W2 jobs for multiple employers.
Robin Kaiser-Schatzlein, a writer and art installer in New York, receives a W2 for work in museums and galleries, but is still a freelancer with a flexible schedule. As a writer, he is a member of the Freelance Solidarity Project, an organizing initiative for independent newspaper and magazine writers, editors, illustrators and photographers housed under the National Writers Union. I joined the project last year, looking for something as close to a union as I could get without having the legal right to one.
Some of us in the Freelance Solidarity Project are misclassified permalancers (permanent freelancers like Leigh was), while others have W2 day jobs; most work for many outlets at once. We share advice on pitching and contracts, and swap information on industry rates. The PRO Act would give us a key additional tool: the ability to collectively bargain with the outlets that depend on our labor.
“The PRO Act eats away at the small-business-cooperation problem,” Mr. Kaiser-Schatzlein explained. “Even if you’re a freelancer and you don’t want to unionize, you should at least have a group that advocates for your rights. If you’re doing your thing and you get six figures, that’s fine, but you should see the benefit of banding together to do that.”
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