Last month, the House of Representatives passed the Protecting the Right to Organize Act (PRO Act). As groups put pressure on the Senate to take up the PRO Act and put it to a vote, there has been a lot of conversation about this bill that was first proposed in 2019.
Simply put, the PRO Act makes changes to the National Labor Relations Act of 1935 and a handful of related laws that govern workers’ rights to organize. It makes it significantly more difficult for employers to retaliate against union movements with layoffs or other punitive measures, overrides anti-union right-to-work laws, and empowers worker solidarity by allowing sympathy strikes and boycotts, which are currently illegal.
Most importantly for freelancers, it expands the right to unionize to include some independent and contract workers, effectively giving some freelancers the same space at the table as their staff counterparts. This is a huge step forward that acknowledges the rights of all workers to organize, to share information with one another, and to speak up for better working conditions.
Workers of all kinds are stronger together than they are alone. Our work organizing freelancers for 25 years has proven just that, leading to multiple wins for the freelance community as a whole, from the passage of the Freelance Isn’t Free Act to the creation of PUA benefits for struggling freelancers during the COVID-19 pandemic. The PRO Act will help proliferate similar protections for exploited freelancers across the country.
Many freelancers are concerned because the PRO Act includes an ABC test to determine who has the right to organize. The ABC test says that any worker is considered an employee with union rights unless they A) control their own schedule, B) work in an industry different from their clients’, and C) can prove that they are “customarily engaged in an independently established trade, occupation, profession, or business.” Only if an individual passes all three of these tests can they be considered outside the scope of unionization.
Using the ABC test here means that a plumber who is hired to fix a leak at a consulting firm would not be eligible to join a union there, because they pass all three parts of the ABC test. A freelance journalist who regularly contributes to a local newspaper, however, would be eligible to unionize alongside its staff writers.
Misunderstandings about the scope of the bill have led many to fear that the ABC test here could affect freelancers ability to contract work, as it did in California’s AB5. In fact, it was a concern for us as well, until we reviewed the full text of the bill that was passed in the House. Not only does the law itself specify that it is limited to amending the National Labor Relations Act, an important amendment was also passed on the floor of the house explicitly spelling out that the ABC test applies to unionization alone and cannot change anyone’s employment status.
We do not downplay the seriousness of the effects that AB5 had for freelancers in California. But the ABC test is simply a piece of language that is used in different circumstances, for different purposes. When it is used to change employment or tax law, as it did in California, it can be detrimental to freelancers. But the PRO Act does not do that.
It is our mission to help freelancers build more power, not less. We would never support legislation that would take away freelancers’ abilities to do their work. In our conversations with the labor organizations and elected officials who are driving the bill, they have also expressed their support for freelancers rights to contract work. The PRO Act is a step forward for more equitable protections for all workers, including freelancers.
For more information about the PRO Act, check out our fact sheet.