Freelance journalists this week voiced their dismay as the House of Representatives passed a sweeping labor law that would prohibit them from working as independent contractors. They should be
concerned, because the misnamed Protecting the Right to Organize Act (H.R. 842) has a toxic clause that effectively outlaws freelancing.
The law would force publishers to apply a set of
rules called the "ABC test" when working with independent contractors. The test, which has been around since the Great Depression but only selectively enforced, says that businesses need to treat
contractors like employees if they're in the same line of work.
The test was included in California's deeply flawed Assembly Bill 5 (AB5) championed by state assemblywoman Lorena Gonzalez, a
former AFL-CIO executive who has faced withering criticism for destroying the livelihoods of freelancers in the state. California later exempted journalists from the ABC Test in a subsequent law
that's still too vague.
Remarkably, the PRO Act has managed to unify freelancers with different political backgrounds in opposition. In an op-ed published by NBC News
, author Judi Ketteler this week described the sense of
betrayal she felt after voting for Joe Biden and other Democrats, only to realize they would support "a piece of legislation that would kill my career as a freelance writer."
I empathize with Ketteler, but there were warning signs when the House passed an earlier version of the PRO Act in February 2020. Biden's presidential campaign also explicitly supported the
measure on its website. Calling for a stronger ABC test, the campaign claimed
the law "will mean many more workers will get the legal protections and
benefits they rightfully should receive."
California's disastrous experiment with AB5 has shown the flaws with that assertion. Its negative effect on California's freelance
community would have been more evident had the pandemic not led to a deep recession and mass employment. Unfortunately, the law prevented many unemployed people from seeking freelance work that could
have helped them weather the crisis.
The PRO Act won't compel publishers to increase their labor costs by hiring freelancers as full-timers. When AB5 was about to go into
effect, Vox Media cut hundreds of freelancers
, most of whom covered sports for
, and instead listed openings for a handful of part-time and full-time jobs. But who can blame Vox for complying with the law?
Fortunately, the PRO Act is
less likely to get through the Senate without changes to filibuster rules that require 60 votes to end debate and bring the bill to a vote. I wouldn't support the bill unless it has carve-outs for
freelance journalists, giving them greater flexibility to work with a variety of publishers and projects.