Note from Jennifer: Today I wanted to take a shift from our usual focus of building our business to an issue that has the potential to threaten our ability to make a living – the PRO act. I urge you to read this post carefully and take the actions that Debbie recommends as well as joining the Fight for Freelancers USA Facebook group.

By Deborah Abrams Kaplan

I’ve been doing content marketing since before it was called content marketing. And it’s been a great way to earn a living while I’ve raised my kids. My work ramped up as my kids grew up, allowing me to write for brands, agencies and traditional publishers while setting my own hours. I could walk my kids to school, take them to afternoon activities, and be the high school robotics coach for three years, while most of the other parents were working on site at traditional jobs. I could take vacations or days off when I wanted, without asking permission from anyone. 

That may not last much longer (well, at least my robotics coaching stint ends in a few months). My career is now threatened by the PRO Act (the Protecting the Right to Organize Act), up for a vote by the U.S. House of Representatives the week of March 8, 2021. If it passes, which it’s likely to do, it then goes to the Senate. President Biden already promised to sign it if it reaches his desk. Actually he campaigned on it.

Supporters say the bill strengthens worker and union rights, and it does that. But it does something else as well: inserts the ABC worker classification test into federal law. Legitimate independent contractors may have a difficult time passing that restrictive test, created in the 1930s to protect factory workers. It is not a test for the modern workforce. 

Prong B of the ABC test is the biggest problem for content marketers. That prong says that “the service is performed outside the usual course of the business of the employer.” So if a content marketing agency provides you with work, you are in the same business as them. They provide content marketing for brands, and so do you. 

One option is to just work directly for the brands, and that may help you avoid the classification issue. But here’s what we’ve seen happen in California. Their AB5 bill with the same restrictive ABC test took effect in January 2020. It threw thousands of independent contractors into chaos in hundreds of professions. The bill did not have the intended effect of providing W2 union-eligible jobs. Instead, clients pulled assignments and started hiring out of state. Marketing was one of the 107 professions excluded from the bill, but some companies were so nervous about a potential Department of Labor audit, they stopped working with ICs all together. 

Here are some of their stories.

While AB5 currently has 107 professions excluded, the PRO Act has no exemptions. 

Independent by choice

Many independent contractors like me are working this way out of choice, and we’re earning more as a result. Having multiple clients provides financial stability. If I lose one client, I have others. If I lose one job, I’m unemployed.

• A Contently study showed that 75% of those surveyed freelance because they want to.
• Even before the pandemic, there was a 71% increase in independent contractors between 2011-2020. Skilled professionals like us are the fast growing segment of the workforce.
• We can earn more as independent contractors. A FreshBooks study showed that 68% of self-employed women earn the same or more as they would in a traditional job.
• The same study showed that 73% of women said they have a better work/life balance as a result of freelancing.
• Even the IRS shows the financial benefits of being an independent contractor. The largest share of workers with independent contractor income are in the top quarter of earners.

Some say you can just become an LLC, S corporation or C corporation. That will solve the problem, right? Wrong. There is nothing in the PRO Act that says if your small business has a certain incorporation designation, that you’re exempt from the bill. Even people in California who formed an LLC to protect their business lost work. While sole proprietors are legitimately able to work as independent contractors in California, that still did not provide protection from income loss.

What can you do?

Learn more: Visit Fight for Freelancers USA to learn more about the PRO Act, the ABC test, and its implications. Join the Fight for Freelancers USA Facebook group to stay on top of events and see how you can advocate (remember to answer all 4 questions when requesting to join or you may not be admitted).

Call your legislators: Demand they vote no on the PRO Act unless the ABC test is removed. Tell them they should not bypass hearings and committee meetings that allow testimony from the very people this law would impact. Tell them your story and how this would impact you. Find your representative here. You can still meet with legislators or their aides on Zoom – we’ve been doing that. Legislators do not understand how the ABC test affects legitimate freelancers in their communities. Explain it to them!

Call House Majority Leader Steny Hoyer with the same message. See his tweet here. His office number is  (202) 225-4131 and email contact is here. You can also contact members of the House Committee on Small Business and the U.S. Senate Committee on Small Business and Entrepreneurship.

Spread the word in your freelancer community. Many people don’t know what the PRO Act is, and how it can affect them. Encourage them to speak out.

Write op-eds and articles. You have the power of the pen to get the word out in your local publications, ones that your representatives and senators read, as do their constituents. The Fight for Freelancers group is happy to help you with statistics, facts and messaging.

Your voice matters. We fought worker misclassification legislation in New Jersey and New York and won. No one thought a ragtag group of freelance writers with no lobbying or advocacy background could do that, but we did. We wrote and we published. We called legislators. We met with legislators. We told our story and how legislation like this will harm us, not help us. Most of them do not know how independent contractors work — they think independent contractors are all Uber drivers. They think we’re all exploited and want to be employees. We’re not. And we should not be collateral damage from well-intentioned legislation. 

Deborah Abrams Kaplan is a content marketing writer, and co-founder of Fight for Freelancers NJ and USA, an ad-hoc, grassroots, nonpartisan group created by freelance writers to stop the ABC legislation on the state and federal level.