Possible changes to the United States labor law are raising eyebrows in some creative circles, where freelancers worry they could lose important freedoms due to legislation that redefines some independent contractors as employees.
“This is something that should be on everyone’s radar,” Kim Kavin, a freelance writer and editor based in New Jersey who co-founded the organization Fight for Freelancers in 2019, told Hyperallergic. She’s sounding the alarm about the Protecting the Right to Organize Act (or PRO Act) bill of 2021, concerned that it could harm not only freelance writers but also artists who operate as independent contractors. For now, the bill is stalled in the US Senate, which means creatives still have a chance to weigh in with their opinions. “Learn who your lawmakers are,” said Kavin, “and tell them you want to be able to choose freelancing.”
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Kavin is particularly concerned about a provision in the bill called the “ABC Test,” which includes three criteria that distinguish independent contractors from employees. “You have to meet all three to be considered an independent contractor,” she explained.
Essentially, the ABC Test defines an independent contractor as someone who controls how they perform the service they’re providing, if the service is outside the usual course of the employer’s business, and if the service aligns with the nature of their independently established trade. The language of the bill reads:
(b) Employee.—Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) is amended by adding at the end the following:“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless—
“(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
“(B) the service is performed outside the usual course of the business of the employer; and
“(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”
Experts note that several aspects of the ABC Test are problematic. After California adopted an ABC Test in 2019, attorney Sara B. Boyns of the law firm Fenton & Keller wrote an article about employment law and the arts, noting that factors B and C are particularly difficult for employers to prove, in part because the phrases “outside the usual course” and “customarily engaged in” aren’t defined in the statute.
While some creatives are opposed to the PRO Act, others are supportive. Organizations that have publicly supported the legislation include the Actors’ Equity Association, the American Federation of Musicians, and the Dance Artists’ National Collective, among others. It remains to be seen whether a significant number of visual artists will decide to publicly weigh in on the issue or take actions to directly support or oppose it.
“The PRO Act was designed to fix problems with the National Labor Relations Act passed in 1935 because it doesn’t map well with the current economy,” according to Michael McQuarrie, who heads the Center for Work and Democracy at Arizona State University. Basically, the original act didn’t foresee today’s gig economy. McQuarrie notes that most PRO Act discussions center around companies like Uber, and their ability to classify people as freelancers or subcontractors rather than employees as a way to avoid being subject to national labor relations laws.
The bill offers several protections for employees, according to a statement issued by the Executive Office of the President in March 2021, which states that the legislation “would strengthen the Federal laws that protect workers’ right to organize a union and collectively bargain for better wages, benefits, and working conditions.”
Even so, Kavin cautions that there would be unintended consequences for freelancers, citing the example of a friend in California who says she lost several graphic design contracts after her state passed Assembly Bill 5 (or AB 5), signed into law in 2019. In the aftermath, some freelancers who didn’t meet the ABC Test reported losing work because companies didn’t want the extra wage and benefit expenses that came with treating them as employees.
The law contains exemptions for several occupations, and further fine print was signed into law the following year. Exemptions added in 2020 included some performance artists and several types of creatives working in the music industry. Despite the updates, Kavin opposes the California law and she’s been working to prevent copycat legislation in other states. Freelancers and artists who want to follow her progress can explore the Fight for Freelancers website.
For artists working in the Southwest, as elsewhere, labor laws and legislation vary by state, according to Crystal Young, executive director for the Utah Cultural Alliance, an organization based in Salt Lake City that advocates and lobbies for the state’s cultural industry. “The Utah Department of Workforce Services already enforces the ABC Test, and if the PRO Act passed that would still be the case,” Young said. “There may be states where it would have a drastic impact, but there are a lot of states that have already been leaning this way.”
As individual artists learn more about the PRO Act, their views about traditional work models may well influence the position they take. “In the arts, many people pride themselves on not being an employee of a place,” according to Clay Lord, who recently served as vice president of strategic impact for Americans for the Arts, a non-profit based in Washington, DC that works to advance the arts and arts education.
Still, Lord notes that being considered an employee has its advantages. “Independent contractors aren’t treated nearly as well as employees,” he said, referencing specifics such as unemployment benefits, social security, and recourse against workplace harassment. “Those are all really good things, but they’re also very expensive for arts organizations,” reflected Lord. Together with Americans for the Arts, he’s broadening the conversation beyond ways to reclassify independent contractors as employees.
“We can roll everyone into being an employee or we can create ways for independent contractors to access capital, family leave, and other benefits,” Lord said. “What would it take to systematically start shifting federal and state policy with the understanding that a lot of creative workers are independent contractors?” According to Lord, it’s a good time to have these conversations, because people are coming out of the pandemic to experience art in public spaces again, and thinking more about the role and value of the arts in their lives.
A research report titled Arts Workers in California, published in 2021 by the Urban Institute in Washington, DC, explores both the specificity of the PRO Act and the larger question of ways to create a better safety net for artists and others in the creative sector. “To build a more just and equitable future for all workers, policymakers must develop systems that do not tie fundamental protections to worker classification status,” the report reads in part. Despite its focus on the California arts sector, the report speaks to issues impacting other states as well as the national arts sector, and is filled with facts that can help people talk with their local legislators about ways to support arts and culture.
“Lawmakers don’t understand that we exist,” Kavin said of her fellow freelancers. “The people who are affected need to speak up.”