Ramin's Space: The PRO Act spurs a rethinking of freelance labor
I believe the bill has the potential to bring about some much-needed reform.
Until recently, I was on the fence about the Protect the Right to Organize (PRO) Act. The bill would outlaw anti-labor practices (like those used by Amazon in Bessemer, Alabama) and grant freelance workers collective bargaining rights, while also posing potential risks to freelance work in the long term. My reluctance came despite having long been a supporter of the labor movement (as you can see from this photo from the early 2000s). But my views have evolved, and I’ve changed my mind. I now believe that if the bill includes some clarifying amendments and if it’s implemented well, its benefits will outweigh its possible risks, and it could give us the reform we desperately need. It already passed the House of Representatives, and now it awaits a vote in the Senate, where the bill currently has 45 co-sponsors. It needs at least five more.
(If you’re not interested in US labor law, this post probably isn’t for you. If you are interested though, and if you’d like to see more than just my views about the PRO Act, you can read a range of opinion in these op-eds in The New Republic, Dissent magazine, New York Times, The Hill, and NBC News.)
Independent workers today come with many names: gig workers, freelance workers, independent contractors. By some accounts, they make up around one third of the American workforce, and that could rise to a half within a decade. Many freelancers (including parents like me) want to keep their flexible hours and independence, but we also want the same right of collective bargaining that everyone else has. Freelance workers don’t have healthcare insurance, sick leave, parental leave, vacation, retirement, etc., and they have little power on their own to negotiate better pay or better contracts. If workers want to exercise their right to form a union and collectively call for better working conditions, shouldn’t they be able to?
Some people portray debates about the PRO Act as a fight between companies like Uber and Lyft and Big Labor. But labor in the United States hasn’t been “big” in like 50 years, with steadily declining membership since the 1970s. At the same time, wages have stagnated and economic inequality has grown. The COVID-19 pandemic has revealed the persistent precariousness of US workers, especially independent workers lacking healthcare and childcare. In my industry of writers and journalists, pay rates have plummeted over the past couple decades, as the growth of online media hasn’t benefited those who actually create it. Writers and journalists now are grossly underpaid, scrambling to cobble together an income, and many decide to leave or experience burnout after a couple years. The current state of the profession is unsustainable and untenable. Some writers have managed to put together a comfortable salary, sometimes by doing consulting or PR on the side, but they’re in the minority. Many freelance journalists and writers make between $20,000 and $40,000 a year — that’s less than school teachers, who are themselves underpaid.
The California bill known as AB5 (Assembly Bill 5) indeed focused on the likes of Uber and Lyft, which grew vis-a-vis taxi companies partly by exploiting their workers. AB5, which became law last year, was intended to push companies like these (and Doordash, Taskrabbit, etc.) to stop misclassifying would-be employees as independent contractors. But the sweeping legislation didn’t sufficiently account for the fact that one size doesn’t fit all: it swept in people working in a broad range of industries, including journalists and writers, many of whom want to remain freelance workers and therefore aren’t “misclassified.” In my industry, there’s plenty of evidence that some outlets afterward decided to stop commissioning California-based writers, or they capped their work. The ostensible goal of pushing companies to hire more people as full-time workers didn’t come to fruition; instead, publishers created only a handful of new jobs, and some freelance writers in the state lost work and income.
The California bill used three criteria to classify employees, known as the ABC test, in a range of labor laws, including those involving wages, workers’ compensation, and other protections. The second “B” prong of the test is the important one: if someone’s work is “performed outside the usual course of the business of the employer,” then they’re an independent contractor with respect to that client, but if the employer and the worker are in the same line of business, like a news outlet commissioning a freelance journalist, that person would be considered an employee. AB5 sparked an outcry of concerned freelancers who clearly aren’t misclassified.
Perhaps the authors of the PRO Act learned from the aftermath of AB5. The PRO Act currently also uses the ABC test (though the bill’s text is still subject to change) but it’s deployed more narrowly, focused only on expanding the class of people who have the right to organize by amending the National Labor Review Act. It wouldn’t affect separate laws, such as those that determine how freelance workers are taxed or hired. There’s a risk of a slippery slope though, if the ABC test does eventually creep into other laws and thereby hampers freelancers’ livelihoods, but we don’t need to have that debate today. Court cases will surely follow the PRO Act, if it passes, and they might not be decided in freelancers’ favor, but that isn’t something we can predict today either. AB5 resulted in some companies hiring only out-of-state writers, but if the whole country’s on board, that tactic’s not really possible anymore. US-based magazines, newspapers and book publishers can’t really outsource writers out of the country, or at least not much.
For these reasons, I believe the benefits outweigh the risks, and I support the PRO Act. We should all have the right to organize! Some freelance writers call for replacing the ABC test with alternatives, such as the IRS test or other sets of criteria, and I honestly don’t have the answer about which criteria are best. While the ABC test’s critics do have some legitimate concerns, it ultimately comes down to the question: who’s excluded and who’s included? The ABC test would include some who’d rather not be included, while the alternatives would exclude many writers who really want to have organizing rights, including me. The IRS test could make it all too easy for employers to push against union organizing, defeating the purpose of the PRO Act. But if the PRO Act indeed only amends the NLRA, then even with the ABC test, I believe freelance writers have little at risk, and critics need not join a union if they choose not to.
I consider my work to be both that of a small business and that of an exploited worker. If the PRO Act is passed and implemented well, can’t we have the freedom to run our businesses as we please and have the freedom to form unions and take collective action?
Opposition to the PRO Act includes those app-based gig economy companies as well as Koch Industries, anti-labor think tanks, and other organizations, including some groups of freelancers. Supporters include unions and organizations with freelance writers and journalists among their members, including the National Writers Union and the Authors Guild. Unfortunately though, I’ve seen unhelpful behavior on each side: some advocates of the PRO Act have dismissed concerns by freelancers and dismissed critics as stooges of anti-labor outfits; on the other hand, some of those opposing the ABC test have espoused anti-union views, opposed organizing efforts like that of the Alabama Amazon workers, and supported the filibuster as a means of defeating the entire bill, despite that filibuster reform would be needed to pass other much-needed legislation, including for voting rights, gun control, and infrastructure. But I’ve also seen thoughtful, well-informed people on each side, too. In any case, tensions are high for a reason: people just want protect their livelihood and those of their peers. I don’t blame them.
The right to organize and bargain collectively enjoys widespread national and international support. It’s enshrined in international law, with 167 countries having ratified a United Nations convention (though the US isn’t among them). While just over one in 10 US workers are represented by a union today, nearly two thirds of Americans support unions, according to a recent poll — the highest level of support since the 1960s. Union drives sometimes end in defeat, and unions sometimes can’t realize their goals. But in my opinion, everyone should be able to band together and organize, if they want to, and try to achieve the gains they otherwise wouldn’t be able to alone. Even failed union campaigns often bring about some improvements to working conditions. It’s about power, it’s about respect, and it’s about justice and fairness.
What might the unions of the future, that include freelance workers like me, look like? Over time and through sustained effort, they would help writers, editors, photographers and fact-checkers have better pay rates, at least with some publishers. They’d also draw attention to outlets like The Atlantic, the Washington Post, and many others that pay their writers poorly. Writers would also have a better shot at winning less exploitative contracts, with fairer indemnity clauses, copyright clauses, kill fees, late fees, etc. Eventually, they could play a role in broader struggles for universal healthcare (like Medicare for All) and parental leave policies that work for freelancers.
There’s no guarantee of success — there never is — but I and numerous other freelance writers and journalists have been struggling alone for years, powerless in an industry resistant to change. If people attempt to draw attention to poor rates or contracts or threaten to boycott outlets that don’t treat their writers well, if it has even a whiff of collective action, it’s deemed a violation of anti-trust laws. As long as we’re divided, we’re all part of what one might call the “reserve army of freelance labor”: we’re easy to exploit, to be contracted at will, at employer-friendly terms. And in this situation, structural, system-wide change is all but impossible. But since we’re simultaneously (very) small businesses and workers, we should have the right to organize and work together in the long-term effort to raise standards across the industry.
If we don’t pass the PRO Act, we need something else like it soon, such as legislation that would give freelance writers and journalists exemptions from anti-trust laws. The status quo isn’t sustainable. Labor rights and a healthy journalism industry are both key parts of our democracy, and they need to be supported as such.
More about me: I’m an astrophysicist turned writer and freelance journalist based in San Diego. You can find me at my website, raminskibba.net and on Twitter @raminskibba. I’m also the former president of the San Diego Science Writers Association (SANDSWA) and on the board of the National Association of Science Writers (NASW), though the opinions I express here are mine alone. You’re welcome to share this newsletter, and if you like what you’ve been writing or want to support my work, please consider a paid subscription. Thanks!