The PRO Act and the misinformation campaign trying to sabotage it.

by Lia Russell

Source: CWA Union website

California’s Assembly Bill 5 was meant to solve the problem of rampant worker misclassification. It’s been well documented that gig companies run on an invisible workforce of piecemeal workers who aren’t entitled to benefits such as health insurance, workers’ compensation, sick leave or paid time off. 

Passed in January 2020, AB5 implemented a three-pronged “ABC” test to determine whether a worker was an employee or independent contractor. 

The backlash was almost immediate. Freelance writers bristled at the limits it set on how many pieces they could write for a publication, driving some groups like the American Society of Journalists and Authors and the National Press Photographers Association to work with anti-union advocates such as the libertarian law firm Pacific Legal Foundation. 

In turn, the companies AB5 targeted, like Uber, DoorDash, and Instacart, launched a successful $250 million ballot initiative campaign that grants them an exception to classify their workers as independent contractors while offering a few paltry protections in return. 

With the Protecting The Right To Organize (PRO) Act on the horizon, it looks as though this slick opposition movement might succeed again. 

The PRO Act, with its broad sweeping reforms to the National Labor Review Act, would transform the working conditions of millions of workers whose livelihoods, right now, are essentially determined by the generosity of their bosses. 

Gig workers, delivery couriers, and other temporary laborers would be granted the right to organize and band together, free of concerns about running afoul of antitrust laws that prevent them from engaging in protected concerted activity. 

While a number of large companies have banded together to oppose the bill, some of the PRO Act’s loudest critics are a particular layer of high-earning freelance writers, who’ve created a cottage industry of misinformation around the PRO Act and how it could impact their livelihoods. 

They’ve published op-eds in outlets like Forbes and The Hill, slamming the PRO Act’s supposed antipathy to freelance workers, claiming that such sweeping labor law reform would effectively end all piecemeal work.

Despite evidence to the contrary, write labor journalists like E. Tammy Kim and Alex Press, the myths persist. 

“The problem with the measure, which is being voted on by the House on Tuesday, is its way of determining who’s considered an employee,” freelance writer and author Judi Ketteler writes for NBC News. “Instead of using the IRS standard, which can tell the difference between an independent contractor and an employee, it uses a far narrower standard from the 1930s — called the ABC test— that can’t.”

However, labor law professor Veena Dubal points out that it was precisely AB5’s status as a state bill, and not a national law, that allowed companies to lay off their California workers and go elsewhere. 

“It was so easy for whatever outlet to say, ‘well we’re not gonna take bloggers from California because of [this law]. Had it been national, it would’ve been much more difficult, if not an impossible thing to do,” Dubal says. 

Other experts like labor lawyer Brandon Magner also debunk Ketterer’s claims, pointing out that the PRO Act would only expand the right to organize under the National Labor Review Act and would have no impact upon how freelance workers are taxed or hired, which falls under separate laws.

“The only way it can ever affect [freelancers] is if they file an unfair labor practice charge or petition for an election,” Magner says. “The NLRB doesn’t just go out and seek potential labor law violations that they think are happening in any given industry.”

Moreover, freelancers like Garnet Henderson say that the PRO Act could materially change their industries for the better.

Henderson, an independent choreographer and dancer, said that the number of dance companies that hire dancers directly - including unionized companies - has shrunk since the Great Recession, and most professional dancers cobble together a living through multiple independent contractor jobs. 

“Misclassification is a huge issue in the dance world,” she says. “We’re hired as contractors, and we’re told when and where to show up, and given lots of direction about how to do our work.”

Henderson recalls one instance where she worked a job with a union company that was covered under the Screen Actors Guild. 

“Because of the standards for wages and working conditions that unions have set in the dance world, it was so radically different from any other dance job I’ve ever had,” she says. 

Like Henderson, freelance reporter Zoë Beery says that the PRO Act has the potential to raise standards for her industry and transform her and other independent writers’ working conditions. 

“It would allow us to hold publications accountable for the truly absurd level of workplace negligence that they currently subject us to,” she says. 

Beery cites late payments, low freelance rates, and editors taking a long time to edit article drafts (thus delaying payment) as some of the problems freelance reporters face. 

“The PRO Act would allow freelancers to hold publications accountable for the truly absurd level of workplace negligence that they currently subject us to,” Beery says. “It would allow us to enter into a labor organizing agreement amongst ourselves and publications, which would be transformative for the industry.” 

Beery also pointed out how the PRO Act’s expansion of labor rights to include freelancers would allow traditionally underrepresented journalists, such as working class writers, to make a fair living wage: “It would help make journalism more accessible to a broader variety of people and make it more accessible for people who don’t have preexisting financial security, which can only be good for journalism.” 

If passed, the PRO Act would end state “right to work” laws, ban employer captive audience meetings, strengthen penalties against companies that interfere in organizing drives, and make it easier for workers to unionize via card check instead of a National Labor Review Board-sanctioned election.

The bill currently faces an uphill battle in the Senate, where a slim majority of Democrats control the chamber. While President Joe Biden and most major unions support it, Republicans staunchly oppose the bill, and it looks as though the legislation won’t garner the 60 votes needed to pass unless Congress scraps or significantly amends the filibuster.

Sascha Cohen, another freelance journalist and adjunct professor, believes the misinformation around the PRO Act is indicative about who would benefit from hamstringing workers’ path to relief. 

“I think other writers who see themselves as entrepreneurs are trying to protect their class status,” Cohen says. “I don’t share that sort of need to differentiate myself as part of a professional creative class when my class interests and economic interests are much closer to that of someone who needs higher wages and health insurance, which can only happen via unionization.” 

Previously, the (vexingly named) Freelancers Union said that it supported the PRO Act if the ABC test were taken out. In an email to Strikewave, however, Freelancers Union president Rafael Espinal said that the organization would soon issue a fact-sheet, citing that “we have a responsibility to ensure freelancers have facts and not editorialized, sensationalized or skewed information.” (Editor’s note: after we published this article, the Freelancers Union contacted us to clarify that they are now in favor of the Pro Act. You can read their fact sheet here.)

Most prominent freelancer journalists’ advocacy groups, however, recognize the potential power that such a sweeping reform effort could have in raising workplace standards and allowing them to improve their working conditions. 

The Freelance Solidarity Project and its parent organization, the National Writers Union, support the PRO Act. NWU President Larry Goldbetter said that if passed it would give freelancers a whole new avenue to bargain for better working conditions. 

“There’s a whole section of freelancers who are classified as permalancers,” he said, referring to workers who are tied to a particular company or outlet but don’t have the benefits associated with full-time employee status. 

“I think most people, if they were offered a full time staff job, would take it. They’d take the union contract, they’d take the minimum wage laws, and unemployment insurance.” 

FSP member and freelance journalist Chris Curley points out that the PRO Act would allow freelancers to band together and apply collective pressure without running afoul of anti-trust laws that currently ban independent contractors from engaging in protected concerted activity. 

“I believe a rising tide lifts all boats,” he says. “As the ability to organize improves for everyone, it becomes harder to union bust. And as labor gets stronger as a whole, every worker collectively benefits.” 

Curley was blunt when asked about what he would tell other freelancers who are scared about the PRO Act impacting their livelihood: “If you’re a freelancer who’s confused, relax - this will help the whole industry, and you need not be afraid. This has the potential to transform our niche of the working class.” 

Lia Russell is a freelance writer based in New York City and a member of the Strikewave editorial collective. More work can be found at liaruss.com or on Twitter @liaoffleash.