Potential changes to US labor laws are causing a stir in some creative circles, as freelancers fear they could lose important freedoms under laws that are redefining some independent contractors as employees.
“This should be on everyone’s radar,” Kim Kavin, a New Jersey-based freelance writer and editor who co-founded Fight for Freelancers in 2019, told Hyperallergic. She’s sounding the alarm about the Protection of the Right to Organize (or PRO Act) Bill of 2021, fearing it could harm not only freelance writers but also artists working as independent contractors. Right now, the bill is stalled in the US Senate, which means creatives still have a chance to voice their opinions. “Learn who your lawmakers are,” Kavin said, “and tell them you want to freelance.”
Kavin is particularly concerned about a provision in the bill called the “ABC test,” which includes three criteria that separate independent contractors from employees. “You must meet all three to be considered an independent contractor,” she explained.
In essence, the ABC test defines an independent contractor as someone who controls how they perform the service they provide, whether the service is outside the employer’s usual course of business, and whether the service is consistent with the nature of their independently established business. The language of the bill reads:
(b) Employee.—Section 2(3) of the National Labor Relations Act (29 USC 152(3)) is amended by adding the following at the end: “A person who performs a service is considered an employee (except as provided in the previous sentence) and not an independent contractor, unless –
“(A) the person is free from control and direction in connection with the performance of the service, both under the contract for the performance of the service and actually;
“(B) the service is provided outside the normal course of business of the employer; and
“(C) the person is usually engaged in an independently established trade, profession, occupation or business of the same kind as that associated with the service rendered.”
Experts point out that several aspects of the ABC test are problematic. After California introduced an ABC test in 2019, attorney Sara B. Boyns of the law firm Fenton & Keller wrote an article on employment law and the arts, noting that Factors B and C are particularly difficult for employers to prove, in part because of the phrases “Outside the usual” and “usually employed” are not defined in the law.
While some creatives oppose the PRO Act, others support it. 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 choose to speak out publicly on the issue or take action to directly support or oppose it.
“The PRO Act was designed to address issues with the National Labor Relations Act of 1935 because it did not fit well with the current economy,” said Michael McQuarrie, director of the Center for Work and Democracy at Arizona State University. In essence, the original act didn’t anticipate today’s gig economy. McQuarrie notes that most PRO Act discussions revolve around companies like Uber and their ability to classify people as freelancers or subcontractors rather than employees to avoid being subject to national labor relations laws.
According to a statement from the President’s Executive Office in March 2021, the bill offers several protections for workers, saying the legislation “would strengthen federal laws that protect workers’ rights to organize and bargain collectively for better wages.” , social benefits and working conditions.”
Even so, Kavin warns 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’s Assembly Bill 5 (or AB 5) passed the Got into effect in 2019 As a result, some freelancers who failed the ABC test reported job losses because the companies didn’t want the additional payroll and benefit expenses that came with being treated as employees.
The law includes exceptions for several professions, and the following year more fine print was added to the law. Exceptions added in 2020 included some performance artists and various types of creatives working in the music industry. Despite the updates, Kavin opposes California law and is working to prevent copycat laws in other states. Freelancers and artists who want to track their progress can visit the Fight for Freelancers website.
For artists working in the Southwest as well as elsewhere, labor laws and regulations vary by state, according to Crystal Young, executive director of the Utah Cultural Alliance, a Salt Lake City-based organization that promotes and lobbies the state’s cultural industry performs. “The Utah Department of Workforce Services is already enforcing the ABC test, and if the PRO Act were passed, it would still be the case,” Young said. “There may be states where the impact would be drastic, but there are many states that are already trending in that direction.”
As individual artists learn more about the PRO Act, their views on traditional working models may well influence their position. “In the arts, a lot of people take pride in not being an employee of a place,” says Clay Lord, who recently served as vice president of strategic impact at Americans for the Arts, a Washington, DC-based nonprofit that works on the Promotion of the arts and artistic education.
Still, Lord notes that being considered an employee has its perks. “Self-employed contractors are not treated nearly as well as employees,” he said, citing specifics such as unemployment benefits, Social Security and workplace harassment remedies. “These are all really good things, but they’re also very expensive for arts organizations,” Lord said. Along with Americans for the Arts, he expands the conversation beyond ways to classify independent contractors as employees.
“We can make anyone an employee, or we can create opportunities for independent contractors to access capital, family leave and other benefits,” Lord said. “What would it take to start systematically rebalancing federal and state policies, with the understanding that many creative professionals are independent contractors?” According to Lord, it’s a good time to have these conversations because people are coming out of the pandemic to relive art in public spaces and to reflect more on the role and value of art in their lives.
A research report entitled Artists in California, published in 2021 by the Urban Institute in Washington, DC, examines both the specifics of the PRO Act and the broader question of how to create a better safety net for artists and others in the creative sector. “To create a fairer and fairer future for all workers, policymakers must develop systems that do not tie basic protections to worker classification status,” the report says in part. Despite its focus on California’s arts sector, the report addresses issues affecting other states as well as the national arts sector, and is packed with facts that can help people speak to their local legislators about ways to support arts and culture.
“The legislature doesn’t understand that we exist,” Kavin said of her freelance peers. “Those affected must speak up”