The 1930s ABC Test from California’s AB5 Must Not Be Codified into Federal Law

When the PRO Act was introduced in the U.S. Senate and House of Representatives in May 2019 (S1306/HR2474), supporters said its purpose was to protect workers’ rights to unionize. Then later that year, legislators changed the bill to add the 1930s ABC Test to redefine whether a person is an employee or an independent contractor for purposes of the National Labor Relations Act. This ABC Test would misclassify millions of Americans as employees when they are true independent contractors.

In September 2020, legislators introduced the Worker Flexibility and Small Business Protection Act, further attempting to expand the use of the 1930s ABC Test in federal law by way of the Fair Labor Standards Act. In January 2021, the process started all over again with the reintroduction of the PRO Act containing this regressive ABC Test.

The ABC Test is a set of Great Depression-era criteria for determining who is an employee, and who is an independent contractor. The version of the ABC Test in these federal bills mirrors California’s disastrous AB5 legislation. Since AB5 went into effect January 1, 2020, thousands of independent contractors have been victims of its career-killing chaos, resulting in lost contracts and lost income statewide. California is now defending several federal lawsuits challenging AB5’s constitutionality, and the state’s own nonpartisan Legislative Analyst’s Office says as many as 1 million people there may ultimately be affected, most of them by losing work.

The PRO Act is an example of “just the tip of the iceberg” legislation to get the ABC Test into federal law, while the Worker Flexibility and Small Business Protection Act is an example of the ABC Test cancer spreading into other significant parts of federal law.

In 2020, then-presidential candidate Joe Biden explicitly outlined this goal on his campaign website: “States like California have already paved the way by adopting a clearer, simpler, and stronger three-prong ‘ABC test’ to distinguish employees from independent contractors. … As president, Biden will work with Congress to establish a federal standard modeled on the ABC test for all labor, employment, and tax laws.”

The 1930s ABC test is 20th-century thinking being applied to 21st-century work. It is regressive, not progressive, and harms the majority of independent contractors who say they want to remain independent contractors.

88 percent of independent contractors oppose the ABC test-based legislation.

2019 Contently Survey

We are FIGHT FOR FREELANCERS USA, a nonpartisan, grassroots coalition of independent contractors who oppose the use of the ABC Test in federal law. Join Us.