07 March 2021

Another Slander Thrown at the PRO Act

As I have mentioned before, the PRO Act significantly expands the right for workers to organize as well as increasing their protections against the nefarious actions of employers and their consultants.

Rather unsurprisingly, the champions of capital over labor do not like this bill, and equally unsurprisingly, they are claiming that the Pro Act would kill freelancing

This is a lie, and the freelancers pushing this are useful idiots:

Private opposition to the Protecting the Right to Organize Act has so far been surprisingly muted. The proposed bill is remarkably comprehensive in nature, encompassing the most far-reaching rewrite of the National Labor Relations Act since the Taft-Hartley Act passed in 1947. Perhaps this is because few insiders believe the PRO Act can pass a deadlocked Senate without a clearer commitment by Democratic politicians to gut the legislative filibuster, but whatever the case, you have to do some digging to see any real organized campaign against the bill as a whole. Even then, it’s the usual suspects ringing the alarm bells: the Chamber of Commerce, the Associated Builders and Contractors, the HR Policy Association, and other organizations which historically have strongly opposed unionism and any pro-worker legal amendments.

The exception to this is coming from a small but vocal community of freelance writers who have taken to Twitter and other social media platforms to signal their opposition to the bill’s inclusion of the so-called “ABC Test.” The test, which contrary to popular belief has appeared in numerous state laws long before California’s Dynamex/Prop 22 episode, states that a worker is presumed to be an employee unless the employer can show that all three of the following conditions are satisfied:
  1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work;
  2. The worker performs work that is outside the usual course of the hiring entity’s business; and
  3. The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

However, the rest of these articles demonstrate a deep misunderstanding of labor law, invoking themes of forced unionization and ruined careers. These predictions are unfounded. The ABC Test, if passed as part of the PRO Act, would only affect the analysis of employee vs. independent contractors status for the purposes of the NLRA. Put simply, the relevant question is whether certain workers possess rights under Section 7 of the NLRA, which guarantees employees (and employees only) the right to strike, collectively bargain, and engage in various other “concerted activities” for “mutual aid or protection.” Those deemed independent contractors under the NLRA have no such rights, and indeed would likely be engaged in price-fixing under antitrust law if attempting such tactics.

What would the PRO Act not affect? Literally anything else. It would not change a worker’s employment status for the purposes of state laws, such as those involving minimum wage, overtime, unemployment compensation, or various benefit schemes. Thus, a worker could feasibly be classified as an employee with unionization rights under the NLRA while still qualifying as an independent contractor under said state laws. Just ask SAG-AFTRA or IATSE, who count many “freelancers” in the entertainment industry as members; they have no consistent employer but still collectively bargain for superior wages and benefits compared to non-union counterparts.

The whole, "Pity the poor freelancer," screed becomes even more ludicrous when one sees the actual plight of the actual stringers who do work for news outlets.

A few "Superstars" might get their noses out of joint about having to pay union dues, but I care about their lot almost as little as they care about the lot of their coworkers.


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