Note
The following statement was submitted by EFA leadership on March 8 to six key Congressional representatives regarding the PRO Act. As written, it may have devastating consequences for freelancers. We encourage members to learn about the bill at fightforfreelancersusa.com and contact their Congressional representatives with concerns. Feel free to borrow our words in messages to your own representatives.
The Editorial Freelancers Association (EFA) and its nearly 3,000 members are deeply concerned about the impact of the proposed Protecting the Right to Organize (PRO) Act of 2021, which was reintroduced in both the House and the Senate on February 4, 2021 (H.R. 842). This legislation moves to reclassify independent contractors, often called freelancers or gig workers, as employees.

EFA members are freelance editorial professionals working as writers, editors, proofreaders, indexers, translators, photographers, designers, desktop publishers, and more. Our members provide services to clients in industries including but not limited to academia, science, journalism (including print and broadcast), marketing, B2B, government, corporate, nonprofit, general and trade publishing, and web content. Our members invest significant resources in professional development, tools and equipment, marketing, and related business activities.

The initial intent of the PRO Act was to protect workers who are misclassified and give them the ability to join a union. However, the bill was amended to add a classification test (ABC Test) taken directly from California’s AB 5 legislation. When AB 5 went into effect, there were immediate and unintended consequences across a number of industries. Rather than creating employee positions for work that had been done by independent contractors, many corporations simply stopped working with California freelancers altogether. Industries dominated by independent contractors—such as respiratory therapy, live translation, and event planning—were thrown into chaos.

The EFA supports the removal of the ABC Test from the PRO Act and instead favors the continuation of the use of the IRS standard to determine whether a worker is misclassified as an employee.

The way the ABC Test is currently written prohibits most independent contractors, like many EFA members, and people in at least 300 other fields from working with clients. Most legitimate independent contractors can pass parts A and C of the test. However, part B, which “requires that the worker performs work that is outside the usual course of the hiring entity’s business,” is both so general and so restrictive that it would spell the death of thousands of small businesses around the country, in dozens of fields. This is clearly not what we need now, or ever.

Instead of the ABC Test, let’s continue to use the IRS standard of whether a worker is misclassified as an employee. The IRS website says, “The general rule is that an individual is an independent contractor if the payer has the right to control or direct only the result of the work, not what will be done and how it will be done.”

Unlike the B part of the ABC Test, the IRS standard allows independent contractors to work in the same industry as their clients.

Independent contractors choose to work as freelancers rather than employees because they can control their working hours and how much work they take on; they can choose what kinds of work they do and what kinds of clients they work for; and they can set their own rates of pay and decide when to take time off. The nearly 3,000 members of the Editorial Freelancers Association jointly urge legislators throughout the nation to rethink and redraft such legislation to protect the careers and businesses of those who choose to work as independent contractors.

Please support the removal of the ABC Test from the PRO Act and similar federal legislation and its replacement with the IRS standard. We need modern labor law that works for us all.

Christina M. Frey
Co-Executive

Bill Keenan
Co-executive