More on the PRO Act

Because, turns out, it's complicated

3/12/21 UPDATE: Freelancers Union and The Authors Guild published really great explainers on this issue. Would advise you to head there for the most comprehensive information!

Hi there,

After wading into the muddy waters of the PRO Act yesterday, I received a LOT of responses. Some kind; some, um, not so kind.

The bottom line: I shouldn’t have used my platform to cover something I knew so little about, and I apologize for doing so.

Most people directed me to Fight for Freelancers, which has been actively lobbying against the PRO Act. I’ve checked out their work and done more reading, and here’s where I’m at now:

I still think a lot of the coverage around the PRO Act is misleading, which is why I sent my newsletter in the first place. The PRO Act’s ABC test relates only to unionizing, and is not going to kill anyone’s freelance career on its own.

As Catherine Fisk, labor law professor at UC Berkeley, told MarketWatch: “The PRO Act applies only to rights to unionize and bargain collectively.” And as House Education and Labor Committee Chair Bobby Scott (D-VA) added: “Anyone making wild claims that this bill would mean the end of freelancing or restrict workers’ flexibility is either mistaken or deliberately misrepresenting the facts.”

BUT, as I learned yesterday, the issue is its passing could lead to a slippery slope, wherein the ABC test is woven into more facets of American employment law.

Here’s what Kim Kavin, one of Fight for Freelancer’s organizers, told me:

“President Biden campaigned on a plan to make the ABC Test from California the basis for all labor, employment and tax law. He wrote that California ‘paved the way’ for this federal change in law through its ABC Test law, which was the disastrous Assembly Bill 5.

The PRO Act is step one in the plan that President Biden outlined. It gets the ABC Test into labor law… Step two in the plan—to extend the ABC Test into employment law—is the Worker Flexibility and Small Business Protection Act. As you can see in the press release announcing that bill, bullet point No. 1 is creating ‘a new standard where workers are always presumed to be employees’ using the same ABC Test.

… The PRO Act does not exist in a vacuum. It’s step one in President Biden’s explicitly outlined plan to make California’s ABC Test the law of the land.”

In response, Professor Michael LeRoy, whom I quoted yesterday, said the slippery slope argument is “highly plausible,” with the caveat that “the wage and hour law (formally called the Fair Labor Standards Act, or FLSA) is full of exemptions for specialized employers and occupations… What this suggests is the ‘slippery slope’ already has dozens of carve-outs that reflect the hardship of taking a one-size-fits-all approach to classifying all workers as employees.”

He continued:

“In general, no bill of this type has ever been proposed, let alone passed. Thus, the confusion around the bill stems, in significant part, from predicting a future that has no precedent.

The bill is very unlikely to pass in the Senate in its current form, due to the filibuster and cloture procedure. If you look to AB5 as a guide, it was passed only after scores of exemptions were literally inserted into the bill.

My point is that for writers who have deep concerns about the bill, there is likely to be an opportunity to add legislation to address these matters. I can’t say what these amendments should be, but I can say that people should at least think about how the legislation can be shaped to address their concerns. The time is ripe for suggesting amendments.”

In the end, however, it may not matter. As Vox reported yesterday:

“The PRO Act, as with many other bills the House is poised to pass in the coming weeks, will likely meet its end in the 50-50 US Senate. The bill doesn’t have support among Senate Republicans, and can’t meet the 60-vote threshold to override the filibuster. There have been some preliminary discussions about ways to incorporate pieces of the bill into the next Senate budget reconciliation package, but the entire bill cannot pass through reconciliation.”

I encourage you to do more research, and promise I’ll keep doing mine, too. If you think I missed something, feel free to reach out.

xo Susan