THE TRUTH

The ABC Test for employment status isn’t pro-worker. It’s anti-independent contractor.

When the PRO Act was introduced in the U.S. Senate and the House of Representatives in May 2019 (S1306/HR2474), supporters said the bill was “landmark legislation to protect workers’ rights to organize.” Later that year, the legislation changed to contain the same ABC Test language as the disastrous California AB5, which went into effect January 1, 2020.

This ABC Test has damaged thousands of careers in California, requiring more than 100 professional exemptions to be added to the law within its first year to try and stop the economic fallout. In November 2020, when California voters had a chance to vote directly on a ballot measure involving the ABC Test law, after seeing its effects for almost a whole year, they rejected it by a margin of 59% to 41%.

Nevertheless, just before that vote, in September 2020, federal lawmakers sought to add this disastrous ABC Test language into federal law by introducing what they again called “a landmark bill that will expand labor laws to protect workers.” That federal bill was the Worker Flexibility and Small Business Protection Act. And in January 2021, lawmakers reintroduced the PRO Act containing the ABC Test yet again. The House of Representatives again passed the PRO Act in March 2021.

The ABC Test in the PRO Act is a relic of the 1930s. It is regressive, not progressive. It is 20th-century thinking being applied to the 21st-century workforce. That’s why it wipes out so much modern independent contractor work.

Truly misclassified workers should absolutely be protected

Supporters of the PRO Act and the Worker Flexibility and Small Business Protection Act say that including the ABC Test in the legislation is a way to protect workers from being misclassified and exploited as independent contractors.

Fight for Freelancers USA supports legislation that protects workers, but we are against any federal legislation that codifies the ABC Test into nationwide law. This ABC Test misclassifies true independent contractors as employees. Study after study shows that the vast majority of independent contractors are not misclassified, are not exploited and do not want to be forced into employee status.

PRO Act supporters say the bill only involves labor law (the National Labor Relations Act), not employment law (the Fair Labor Standards Act) that really matters to independent contractors

The PRO Act is step one toward making California’s career-killing ABC Test the basis for all labor, employment and tax law. President Biden campaigned on a promise to make the ABC test the basis in all three areas of federal law. The PRO Act is step one in that plan: labor law. As President Biden wrote: “States like California have already paved the way.”

That’s true, if we’re talking about the road to hell for the 70-85% of independent contractors who repeatedly say they want to continue working as independent contractors.

Why would anyone want to misclassify independent contractors as employees?

Because it is illegal, under federal law, to unionize an independent contractor. Union membership is at an all-time low in the United States. If Americans cannot legally work as independent contractors, they will be forced to seek traditional employee-status jobs, from which they can be legally unionized.

The AFL-CIO, in particular, is pushing these ABC Test laws nationwide.

Before the February 2020 vote on the PRO Act in the U.S. House of Representatives, AFL-CIO President Richard Trumka told lawmakers that he would withhold campaign contributions and support from any of them who opposed the PRO Act bill.

Do not ask the labor movement for a dollar or a door knock. We won’t be coming.

Richard Trumka, AFL-CIO president, in a tweet he later deleted

When the Worker Flexibility and Small Business Protection Act was introduced, Trumka was quoted in the sponsors’ press release along with Mary Kay Henry, president of the SEIU union.

The U.S. Chamber of Commerce called the PRO Act “a litany of almost every failed idea from the past 30 years of labor policy.” Study after study shows that the majority of independent contractors want to remain independent contractors.

75 percent of independent contractors say they prefer freelancing over a full-time job

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.