The PRO Act is a good regulation with a deadly flaw, however fortunately, the repair is simple

I invited Kim Kavin, a freelancer-rights activist well-versed within the concern, to speak about why the present “ABC” check is so lethal to freelancers, and the way merely switching to the IRS check would resolve that group’s considerations. So with all that, I am passing the mic.


By Kim Kavin

That was simply one in all quite a few tweets that self-described Democrats and Progressives blasted out en masse March 8, after U.S. Rep. Elise Stefanik of New York — a Republican and staunch defender of President Trump — introduced an amendment to take away language known as the ABC Check from the Defending the Proper to Arrange Act.

Right here’s one other, from a good friend of mine in California who relentlessly supported Joe Biden in his run for the presidency:


A day later, the U.S. Home of Representatives defied constituents like these — refusing even to present Stefanik’s modification a good vote on the ground — and handed the PRO Act with the ABC Check nonetheless in it. An op-ed instantly appeared on NBC Think with the title, “I backed Biden and the Democrats. However their pro-union invoice might kill my profession.” And a new hashtag was proposed, #MomsAgainstTheProAct, simply because the Facebook group I co-lead to cease the ABC Check from moving into federal regulation noticed an inflow of a whole bunch of recent members.

Right here’s what the Fb group’s new demographic breakdown seemed just like the day after the Home vote, reflecting the kind of People now terrified and coalescing to cease the PRO Act from advancing any additional with the ABC Check nonetheless in it (you inform me which political social gathering’s base this knowledge finest represents):

Democrats have made a dramatic miscalculation by including the ABC Check to the PRO Act, and by ignoring what one congressional aide informed us have been hundreds of calls they acquired forward of the Home vote begging them to take away the ABC Check from the invoice.

The social gathering in energy, if it needs to remain in energy, now must withdraw the ABC Check earlier than bringing the PRO Act to the ground within the Senate, or let the invoice die there altogether. And Democrats have to state publicly, and loudly, that they not favor the ABC Check being in federal regulation or laws of any sort.


I wrote intimately about this restrictive ABC Check and its perils for DailyKos a little over a year ago. That was after California had enacted it into regulation, and after my house state of New Jersey had tried to cross a copycat model of California’s ABC Check invoice. The New Jersey effort failed within the face of what a Democrat and 20-year veteran of the Backyard State’s Legislature known as an “amazing amount of opposition.” On the time, I wrote for DailyKos that then-candidate Biden was amongst these campaigning on a plan to take this ABC Test nationwide, regardless of the chaos it had already caused for so many Californians and the outcry it had fueled in New Jersey. 

I additionally wrote, based mostly on the check runs we’d simply skilled in these shiny blue states, that the sheer variety of People who could possibly be unfairly harmed by this ABC Check “could be sufficient to swing an entire election.” Thousands and thousands of People unfairly caught on this ABC Check’s web, I wrote, would see what’s occurring as “an assault on their chosen lifestyle.”

Right here we’re 14 months later, with the election cycle for the following session of Congress set to ramp up by the top of this 12 months. And right here’s what was throughout Twitter this previous week, the day after the PRO Act handed the Home with the ABC Check nonetheless in it:


Maybe now, we’re all able to have a critical dialog about the necessity to take away this ABC Check from the PRO Act, and to maintain it out of all areas of federal regulation.

You possibly can learn all of the ins and outs of this ABC Check in my original piece on the topic for DailyKos, however suffice it to say that probably the most career-killing a part of the check is B-prong, which states that an individual can’t legally do work as an impartial contractor if she’s in the identical line of enterprise as the corporate paying her. This B-prong has ensnared Californians in hundreds of professions equivalent to actors, architects, DJs, therapists, musicians, and the record goes on. The injury has been so intensive that greater than 100 professions have already been exempted, with extra nonetheless in search of exemptions or reduction in federal courtroom. The federal PRO Act has zero exemptions, willfully refusing to study from California’s errors. 

This “similar line of enterprise” provision of the ABC Check hits freelance journalists like me, who promote articles to magazines and newspapers. It hits respiratory therapists taking over day work at hospitals that need assistance with Covid-19 surges. It hits actual property appraisers who do assessments for property corporations. It hits so many various kinds of professions that it’s mind-boggling. It hits shopping center Santas and celebration magicians, monetary advisers and franchise house owners, and a heck of quite a lot of the truckers who’ve been holding our provide chains working earlier than and through the pandemic. In accordance with the California Trucking Affiliation, there are 350,000 owner-operator truckers nationwide.


If this ABC Check will get into a number of areas of federal regulation the way in which Democrats have pledged to enact it, tens of millions of those and different People would not be capable of work the way in which they’re working now. Firms would both need to make them staff or finish their contracts altogether within the face of fines and penalties. Proponents of this ABC Check say the previous will occur, and that after these People develop into newly minted staff who’re legally eligible for unionization, they’ll assist to rebuild America’s dying unions. The fact of what we simply witnessed for greater than a 12 months in California was that corporations selected to finish contracts. They didn’t create conventional jobs because of the laws.

To be clear: California simply taught us all that these stringent ABC Check legal guidelines imply impartial contractors lose their purchasers and careers. Valuable few employee-status jobs are created, and nil new unions are fashioned.

This ABC Check is just not solely bad policy, but it surely’s additionally dangerous politics, particularly relating to girls voters at a time when women are reeling economically from the recession. So long as this ABC Check stays within the PRO Act, it could simply be used to slam Democrats all over the place. It’s a direct assault on the livelihoods of an enormous swath of the social gathering’s base who select to be their very own bosses whereas elevating children, caring for aged dad and mom, or just making an attempt to flee the glass ceiling and sexual harassment in conventional workplaces.

In accordance with a major 2019 study by the IRS and U.S. Treasury, the variety of household breadwinners who’re girls doing impartial contractor work is up 90% since 2001. Another 2019 study confirmed that 73% of those self-employed girls say they’ve a greater work-life steadiness; 68% earn the identical or extra money than in a conventional job; 59% say they’ve much less stress; and 57% say they’re more healthy.

These are the ladies outraged at Democrats who simply voted for a plan to remove their alternative of impartial contractor work by passing the PRO Act with the ABC Check nonetheless in it. These are the ladies suggesting hashtags like #MomsAgainstTheProAct and cheering a Trump Republican whose beliefs in any other case repulse them.

The newest speaking level amongst PRO Act supporters is that this response is nothing greater than a bunch of hysteria (we ladies simply adore that phrase) and that the PRO Act isn’t actually the identical as California’s regulation. They are saying that whereas California lawmakers added the ABC Check to a number of areas of regulation, the PRO Act solely provides it to at least one space: federal labor regulation.

However the Biden plan clearly states that the PRO Act is just the first step in making the ABC Check the premise for all labor, employment and tax regulation, and that he’ll work with Congress to make this full plan a actuality like within the ridiculously named bill, the Employee Flexibility and Small Enterprise Safety Act. As Biden put it, “states like California have already paved the way.” He’s now placing the entire nation on a path that follows California’s disastrous ABC Check laws.

What’s occurring proper now all throughout America, with the Home passage of the PRO Act and the ABC Check nonetheless within the invoice, is impartial contractors going by way of the identical psychological train that these of us in California and New Jersey endured a little bit greater than a 12 months in the past. This vote taught quite a lot of impartial contractors — particularly those that are Democratic girls — that what’s occurring is intentional. They’re realizing, after calling their lawmakers to elucidate the issue with the PRO Act because it’s at present written, that the individuals they elected into energy aren’t listening to them. They’re feeling hunted as an alternative of protected by the social gathering they only threw their hearts and souls into supporting.

There may be nonetheless time to make amends for this betrayal. Senate Majority Chief Chuck Schumer said in a broadcast to freelancers six months in the past (begin watching round minute 26) that he would work to repair the issues we now have with the ABC Check within the PRO Act. Schumer did not make good on that promise earlier than the Home handed the PRO Act this month. Each he and Biden now should inform America’s contractors that they’re able to pay attention, and that they are going to take away the ABC Check from the PRO Act and hold it out of federal regulation altogether.

And right here’s the excellent news: Eradicating the ABC Check in favor of various language might be a simple repair. The ABC Check is just not the one language in current regulation that can be utilized to find out who’s an impartial contractor. We have already got the far more nuanced IRS Test obtainable as a substitute. That’s a check trendy impartial contractors can cross, as a result of it could inform the distinction between an exploited manufacturing facility employee and a six-figure graphic artist.

Don’t just like the IRS Check? OK, nicely, there’s quite a lot of political wrangling proper now about an even newer test that the U.S. Department of Labor put forward on the finish of the Trump administration, however when it comes to the big-picture concern at hand, these options make clear that there are methods to write down guidelines that shield People preferring impartial contractor work. 

Individuals who select self-employment deserve safety simply as a lot as misclassified staff do. The regulation ought to work for us all. If it’s solely Republicans like Elise Stefanik who acknowledge the necessity to arise for the majority of independent contractors wishing to remain self-employed, then they’re the lawmakers who will hear increasingly more impartial contractors cheering them on. From all walks of life. All throughout the nation. For so long as it takes to get this downside of individuals’s livelihoods resolved.

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