Freelancers are freaking out about the PRO Act. Here is why they should – and shouldn’t – be worried.

PRO act Bobby Scott
Rep. Bobby Scott (D-VA), Chairman of the House Committee on Education and the Workforce, speaks during a press conference advocating for the passage of the Protecting the Right to Organize (PRO) Act in the House of Representatives on February 5, 2020.

  • The PRO Act, which passed in the House, includes a metric for reclassifying workers that freelancers object to.
  • Many independent contractors don’t object to the right to collective bargaining, but worry the bill could set a dangerous precedent.
  • Lawmakers must strip the “ABC test” from the bill.
  • Larry Buhl is a multimedia journalist, author, and podcast host.
  • This is an opinion column. The thoughts expressed are those of the author.
  • See more stories on Insider’s business page.

Back in 2019, I predicted that California Assembly Bill 5 (AB5), which upset the independent contractor world by reclassifying freelancers in hundreds of occupations as employees unless they could prove they’re not, would be seen by other lawmakers as a road map, rather than a cautionary tale. And here we are: a new bill working its way through Congress, the Protecting the Right to Organize Act of 2021 – or PRO Act – should give independent contractors across the country reason to worry, though not necessarily because of the intent of the legislation.

The ABC test

What made AB5 so problematic was its reliance on the ABC employment test to classify workers. ABC says a freelancer should be an employee, unless:

“A) The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

B) The worker performs work that is outside the usual course of the hiring entity’s business; and

C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”

The worker must meet all three. Part B is where many independent contractors went through the buzzsaw: If you’re in the same business as a client, you must be an employee, and, presumably the company would hire you, even if you’ve only been putting in a few hours a week for them. Yet, instead, most employers are just not working with California freelancers anymore.

ABC is also the basis for reclassification in the PRO Act, which passed the House of Representatives earlier this month with bipartisan support. However, there’s one big difference: While AB5 reclassified employment status for workers in California, the PRO Act reclassifies freelancers nationally, but only for the purpose of collective bargaining rights. That’s all – or so it states. Supporters say it “levels the playing field” for unions, to give more people the right to vote in union elections.

I spoke with Professor Michael LeRoy, an expert in labor law and labor relations at the University of Illinois Urbana-Champaign, to find out whether freelancers should worry about the PRO Act. He said there’s been some hyperbole and misunderstanding about it.

“Does [the PRO Act] force you to be in a union? No. If 10 million [freelancers] are classified as employees, a certain amount will want to form one or join one, but they could also vote no,” he told me.

I’d be okay with more people being able to collectively bargain if they want. Freelancers I spoke with aren’t apoplectic about theoretical pressure to join a union, either. What does concern us greatly is the ABC test being used to reclassify independent contractors for any reason. Almost everyone I spoke with feared the ABC test would be misapplied by companies who read the reclassification part of the law, but miss the part about unions. Freelancers also worry that the ABC test will set a precedent for future legislation. It already has: Several states used AB5 as a model when proposing new “gig worker protection laws.”

Unintended consequences

Fred Topel, a Los Angeles-based entertainment journalist and co-leader of California Freelance Writers United (CAFWU), implored national lawmakers to not use the ABC test. “If you take out the ABC test, I think a majority of [CAFWU] members would support it. We’ve seen no evidence that AB5 worked as lawmakers intended, but plenty of evidence of unintended negative consequences from the ABC test,” he said.

Robert Sette, a freelance translator in Denver, predicted that any big change to labor laws using the ABC test would make hiring companies think twice about using independent contractors. “Many won’t see [the PRO Act] as only for labor organizing. They’ll see this as a risk management issue. To avoid possibly running afoul of the law, they’ll cut loose freelancers.”

That did happen in California. The Facebook group Freelancers Against AB5 has been compiling personal stories of independent contractors in California who lost work and income directly as a result of that law, well before the COVID-19 crisis. Based on dozens of “no Californians need apply” notices citing AB5 as the reason, it appears that many companies were so bewildered by the law and scared of fines for possibly violating it, they simply gave up on California independent contractors.

The road to career hell was paved with good intentions

After AB5 passed, I joined CAFWU and other advocates in California to petition state representatives to amend the law. We succeeded in getting exemptions for some professions.

Through the process, we learned that most lawmakers had no clue about the scope of the independent contractor world, and assumed most people deriving an income were either employers, employees, or exploited would-be employees. The bill’s biggest proponents said, in so many words: Don’t worry if you lose work because all your clients will hire you full time, with benefits! We explained that’s not how it works, emphasizing that most independent contractors are thriving professionals.

I recognize that some independent contractors do want full-time work, and that many other workers are truly misclassified and exploited. There should be protections from misclassification, except – there already are laws covering that. Any worker can sue for misclassification right now – albeit with difficulty.

We don’t need new laws that help some, but also legislate hundreds of thousands of successful careers out of existence. LeRoy agreed the ABC test is a blunt tool that “oversimplifies” the labor force and would need “significant refinements” and exemptions if kept in place. A potential solution could be a multi-factor balancing framework to determine who’s an employee, one like the IRS uses.

In order to prevent the ABC test from wreaking havoc on more independent contractors’ lives, constituents must start conversations with their representatives, starting with the Senate subcommittee members that will be discussing it. They could point to surveys showing that 30% of the US workforce is either self-employed or hired by the self-employed and estimates that freelance income is nearly 5% of GDP.

Stripping the ABC test from the PRO Act could prevent lawmakers from proposing more damaging bills, like the one written last year by Democratic Senators Patty Murray of Washington and Sherrod Brown of Ohio. Their bill gives some benefits to temp and gig workers, but, like AB5, it uses the ABC test to sweep all professions into its net.

This shouldn’t be a partisan issue, but sadly it is. Many Republicans insist any labor protections will hurt business and therefore can never be considered. Based on comments from AB5’s proponents, many Democrats assume what’s good for unions surely benefits everyone. Labor classifications must be more nuanced than that because today’s labor market is complicated.

Pro-labor lawmakers need to understand that freelancers are not necessarily suffering gig workers, or getting by until they land a “real job.” They should either toughen enforcement of existing laws or make sure new laws explicitly help workers who need protections, but not hinder independent contractors’ ability to earn a living. Labor law shouldn’t be a zero sum game.

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Uber will pay its 70,000 UK-based drivers minimum wage and benefits following a major Supreme Court defeat

uber driver prop 22
Rideshare driver Teresa Mercado raises her fist in support as app based gig workers held a driving demonstration with 60-70 vehicles blocking Spring Street in front of Los Angeles City Hall urging voters to vote no on Proposition 22 on Oct. 8, 2020.

  • Uber is reclassifying its UK-based drivers as “workers,” it said in a regulatory filing Tuesday.
  • The move requires Uber to follow minimum wage, paid vacation, and other labor laws.
  • Uber strongly opposes efforts to reclassify its drivers, but pivoted in the UK after a legal defeat.
  • See more stories on Insider’s business page.

Uber announced Tuesday it will reclassify drivers in the United Kingdom as “workers,” guaranteeing them minimum wage, paid vacation, pensions, and additional protection under the country’s labor laws.

In a statement, Uber told Insider the move will impact more than 70,000 drivers, and follows a recent unanimous Supreme Court decision that determined drivers should be classified as workers.

Uber initially downplayed the ruling, saying it “focussed on a small number of drivers who used the Uber app in 2016,” though shares of Uber dropped as much as 2% following the ruling.

With Tuesday’s announcement, Uber has opted to reclassify all UK drivers rather than fight legal battles with individual drivers about whether the court’s ruling would apply to them.

“Uber is just one part of a larger private-hire industry, so we hope that all other operators will join us in improving the quality of work for these important workers who are an essential part of our everyday lives,” Jamie Heywood, the regional general manager for Northern and Eastern Europe, told Insider in a statement.

The move is a major shift for Uber, which has aggressively fought rulings by courts and regulators in the US that have determined drivers to be employees as opposed to contractors. In California, Uber spent at least $30 million persuading voters to pass Proposition 22, a law it co-authored that carved out an exemption from state labor laws to allow rideshare and food delivery drivers to be treated as contractors.

Unlike American law, which defines workers as employees or contractors, UK law has an additional “worker” category, which entitles workers to receive the minimum wage, paid vacation, rest breaks, and protections against illegal discrimination, retaliation for whistleblowing, and wage theft. That classification falls short of guaranteeing benefits like parental leave and severance to which full employees are entitled.

Uber said the UK minimum wage, which is slightly above $12, will serve as an “earnings floor, not an earnings ceiling” after accounting for roughly 62 cents in per-mile expenses, but that drivers won’t be paid for the time they spend waiting for a ride – which some researchers have found accounts for as much as 33% of drivers’ work.

Uber also said it will pay drivers around 12% of their earnings as vacation pay every two weeks and enroll them in a pension plan to which Uber will also contribute.

Labor advocates voiced their support for the move and the court ruling that proceeded it.

“Dear America … see what happens when a government lays it down? Is Uber leaving? No, they’re actually doing right by their workforce in the UK. Our drivers deserve this too. Why would an American company short change American workers? Because we let them!” tweeted California Assemblywoman Lorena Gonzalez, the author of AB-5, the state labor law that Uber sought an exemption from by pushing Prop 22.

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I’m a freelancer who could lose out on income, flexibility, and being the primary caregiver to my child if the PRO Act passes

Mary Kearl
Mary Kearl.

  • Mary Kearl is a professional freelance writer and marketing consultant.
  • As a freelancer, she enjoys being able to make more money, choose her own hours, and be an active caregiver to her toddler.
  • If the PRO Act in its current form passes in the Senate, Kearl says she could potentially most of her clients and income.
  • See more stories on Insider’s business page.

Professionally, I’ve never been happier since becoming a freelancer. Sure, there are the occasional stresses of chasing down payments and the ongoing uncertainty of not knowing exactly how much I’ll earn, but as someone who thrives when I’m learning and being challenged, the pros outweigh the cons.

For me and my husband, who is also a freelancer, the pros include earning more per hour than when we worked full time, setting our own schedules, sharing in being the primary caregivers to our toddler, deciding the companies we work with and projects we take on, and the flexibility to work from and live anywhere – even traveling through South America for six months.

As a freelancer, I earn about three times more per hour than when I had a full-time six-figure job.

I’m not alone. A new survey from the freelancing platform Upwork found that most freelancers (75%) earn the same as or more than what they took home from their former full-time jobs.

Freelancing has been life-changing for my family, but now all of that is potentially on the line for me and millions of other freelancers because of a new bill the House of Representatives just passed called the Protecting the Right to Organize Act of 2021, or PRO Act for short.

Certain goals of the bill are concepts I support – like making updates to US labor laws to advance workers’ rights to organize and strengthen unions and aiming to prevent gig-economy companies like Uber and Lyft from designating workers such as drivers as independent contractors rather than full-time employees who would be eligible for benefits.

But there’s a fear that the PRO Act could potentially sideline the self-employed careers of individuals like me who do not want to be classified as employees and would prefer to retain our independence.

As other writers have spoken out about, the main issue for freelancers comes down to the inclusion of the ABC test within the bill, which states:

“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor, unless-

“(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

“(B) the service is performed outside the usual course of the business of the employer; and

“(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”.

Self-employed contractors may “fail” to qualify as independent for any one of these reasons. For the publications I write for, publishing articles will likely be considered part of the “usual course of business” for the company. The same goes for the social media strategy, copywriting, editing, and content marketing support I’ve provided to marketing agencies.

If the PRO Act passes in the Senate without any changes to its language and the ABC test becomes the standard used to classify employees, the fallout for my career and family could be considerable.

I know because I’ve already once had to make major life changes due to the ABC test.

Last year, a California law AB5 that adopted the ABC test and impacted hundreds of types of professionals into effect and threatened to bring my new career to an end. Ultimately AB5 factored into my decision to move out of the state to a small town in Maine where I wouldn’t be impacted.

Already three of the companies I’ve worked for in a marketing capacity have worked with me through third-party companies that set up contracts with me directly to absorb the risk of working with self-employed individuals like me. Contracting freelancers through third parties is something major companies may be able to do, but that’s not likely for smaller companies.

If enough of my clients can no longer work with me as a freelancer as a result of this new law, I’ll most likely have to get a full-time job, take a pay cut, work longer hours than my current 25 hours a week, lose my flexible schedule and autonomy, and miss out on being a primary caregiver to my child.

And, unless I can find something that’s remote, I’ll likely have to move again.

This time, I’d have to go to a major city where there are more openings for writers and marketers like me. That means a higher cost of living, and, unless one or both of us can find something truly flexible, we’ll either have to start paying for childcare (which costs about $9,000 a year in Los Angeles, for instance) or one of us will have to take a break from being part of the workforce, something more parents and, moms especially, have already had to do during the pandemic.

As I write this article at night as my child sleeps, I’ve just spent the morning at the beach with my family.I choose when I work and when I’m off the clock. Over the past two years, I’ve had the chance to work with over 30 different brands and publications, and during that time no single company I’ve worked with has made up more than about one-fourth of my income, let alone 100% of it.

I’m certainly not a misclassified employee. I’m happily self employed, and that’s how I hope things can stay.

I’m in favor of advancing workers’ rights, and hope the PRO Act can be updated to ensure freelancers who want to remain autonomous can do so.

Read the original article on Business Insider

From being targeted for robbery to confrontational customers, 4 Amazon delivery drivers talk about what scares them during peak season.

Jim_Smith
Jim Smith is a 55-year-old Amazon driver in Oregon.

  • Business Insider spoke with four drivers who work as contracted Amazon delivery drivers about the dangers they face during the winter months, from navigating dark, rural roads and extreme weather conditions to dealing with difficult customers and package thieves.
  • The delivery drivers we spoke to mentioned heightened safety concerns like fear of being targeted for robberies or even robbed at gunpoint.
  • One driver Business Insider spoke to said he experienced two incidents where he was being followed, which led him to call the police. Another added, “There’s nothing in that van that’s worth your life.”
  • In a statement to Business Insider, an Amazon spokesperson said, “The safety of our drivers is our top priority.”
  • Visit Business Insider’s homepage for more stories.

Dog bites, twisted ankles, and dealing with irritable customers are all just part of the job as an Amazon delivery driver. Many employees deliver in rural areas and have to navigate twisty, gravel, or dirt roads. Others deliver multiple 50-pound packages to the same five-story walk-up apartment building every day. 

But as the days get shorter and the nights get longer (and darker), Amazon delivery drivers have to deal with a brand new set of dangers and safety concerns. 

In recent months, several delivery drivers across the country have been kidnapped and held at gunpoint for the contents of their vehicles. Many drivers are scared and concerned about these new dangers they’re facing when out delivering packages during the winter months.

Jim Smith, 55, lives in Scappoose, Oregan, and began driving for Amazon in March 2020.

IMG_3331.JPG
Jim Smith.

Smith joined Amazon after his freelance photography gigs were canceled indefinitely due to the coronavirus pandemic.

He’s been on the job for 10 months and has already experienced the physical toll delivering for Amazon can take on one’s body, like blown out knees from 10-hour shifts.

Delivery drivers like Smith, who drive the bigger step trucks, get in and out of the car over 200 times and can walk up to 10 miles each day. 

But, according to Smith, the winter months raise different safety concerns. 

“The fear, or rather the reality, of possibly having your van broken into, stolen packages, or the extreme possibility of being hijacked, that’s only one of the dangers that’s present this time of year,” he said. “For me, there have been times on routes where I see the same car a couple of blocks behind me or parked in front of me. My thought is this could be either porch pirates that are following along my route and stealing packages behind me, or somebody who may have worse intent.”

Smith says ever since a UPS driver was kidnapped at gunpoint in Portland, he and many of his colleagues have been “on edge” while out on the road.

Many Amazon vans have a back-up camera that is active even if the van is not in reverse, and Smith uses that screen to keep an eye on his vehicle’s surroundings.

“I know that holidays make people desperate. Add that on top of the huge unemployment that we’re seeing and people just barely scraping by because of COVID, I think there’s a lot of motive out there right now with people financially hurting,” Smith said. 

Smith says he stays vigilant on the job by locking his van when he leaves it and keeping his personal cell phone on his body at all times. Acknowledging that you are a target is the first step in better preparing yourself for any future potential incidents, he said. 

“You need to keep your head on a swivel, you need to use the technology that you have to try to keep yourself safe, and just realize that there’s nothing in that van that’s worth your life,” Smith said. “Give them keys, give them the company phone and plead for them to let you walk away.”

Read more: How retailers big and small plan to tackle last-mile challenges, from third-party delivery services to acquiring their own tech

Angel Rajal, 26, lives in Las Vegas, Nevada and has worked for Amazon for the last four years.

Angel_Rajal
Angel Rajal.

He worked first in the warehouse and then as a delivery driver. He made the switch to deliveries in June 2020 and realized he enjoys the customer-facing experience much more than working in the distribution center packing packages. 

But Rajal quickly started noticing, as a driver, that he would sometimes be followed. 

On one occasion, Rajal noticed the same car with two women following just far enough behind him. As the car quickly approached, he noticed the backseat of their car was filled with brown packages, similar to Amazon’s, and became concerned. 

“At first I thought they may have been Flex drivers, but they didn’t have the sticker or the Amazon vest, they didn’t have any of that,” Rajal said. “So I notified the police and I think they were able to get them, but I’m not sure.” 

The second time Rajal noticed he was being followed, he was in a gated community and kept seeing the same young man walk back and forth from where he just delivered. 

“I would see him peek around the corner just as I dropped off a package,” he said. “And when I would move on to the next stop, he walked back to the same house, and that’s when I knew that he was looking for the packages.” 

Amazon has a strict policy against delivery drivers carrying weapons while working, even if a driver has a concealed carry license, Rajal explained to Business Insider. Amazon delivery drivers are considered independent contractors, not employees, but if they are found to be in possession of a weapon, they can lose their jobs. 

(Editor’s note: Rajal and Smith are both employed through delivery service provider companies which Amazon contracts for deliveries, and are not considered Amazon employees.)

Rajal said he feels fairly safe delivering during the winter season, but understands that right now as the pandemic worsens and many families are hurting economically, it’s important to “check your back constantly.”

“Every time I’m on the road, during my job, I try to stay vigilant, making sure that I’m not going to have people approaching from behind when I’m on the side door looking for the packages, making sure that no cars are going to pull up on me,” Rajal said. “That’s an everyday concern because anyone can pull a gun or a knife on you at any given moment.”

Jennifer Harbaugh, 51, has been an Amazon Flex driver for over a year in Portland, Oregon.

Jennifer_Harbaugh
Jennifer Harbaugh.

Flex drivers are like delivery drivers, except they use their own vehicles, are not employed through a delivery service partner (DSP), and are paid per “batch”. 

Batches are typically given in three hour “blocks” and contain a certain number of packages for a specified rate. According to Harbaugh, most Flex batches are available in the evening hours, and as the days get shorter during the winter, many shifts she’s delivering almost entirely in the dark. 

Harbaugh delivers all across the Portland metro area, including rural areas in southern Washington. She says she’s had to deliver to homes with long, dirt driveways and “private property” signs.

She’s also been confronted multiple times by customers wondering what she was doing on their property, and was greeted one time by a man with a shotgun slung over his shoulder, wondering who she was.

Since Harbaugh is a Flex driver, she drives her own personal vehicle but also wears an Amazon vest. 

Harbaugh recalled an instance where the delivery instructions said to place the package at the back door. It was night when Harbaugh arrived at the house. She struggled opening the gate, but figured no one was home. As she walked through the backyard, she noticed the home’s “huge picture windows” and a family, including two small children, eating dinner at a table. 

“Those two children freaked out,” Harbaugh said. “They started screaming, and then the mom grabbed the kids and the dad started screaming at me and charged out the back door. I had my vest on, and I said, ‘I’m Amazon!’ and then he said, ‘I don’t care who you are, what are you doing in my backyard?'”

She then showed him her phone with the delivery instructions and the man quickly calmed down and apologized. 

“After that I sat in my car and cried. I had an adrenaline rush and had a couple of tears and then thought, ‘Okay I’m fine.'”

Read more: A 32-year-old software engineer went through a ‘super stressful’ interview process at Amazon – but turned down the $167,006 offer. Here’s how she decided other things were more important than money, without burning any bridges.

Stephanie King, 56, is an Amazon Flex driver who lives in Tigard, Oregon.

Stephanie King
Stephanie King.

King’s been a Flex driver for nearly two years, and has also driven for Lyft and Uber. She started working solely as a Flex driver at the start of the pandemic because she worried about the safety of having other people in her car. 

The main concern King has as a Flex driver is making deliveries in the dark and during extreme weather conditions. Certain parts of Washington and Oregon get snow and heavy rain during the winter, so much so that King decided to put her snow tires on her car to circumvent any potential problems while she’s on the road. 

“The more you drive, the more likely you are to be in an accident,” she said. 

Because King delivers mostly in late evenings, she makes sure to wear bright colors. 

She said she drives “an Amazon blue” electric car, too. 

“I don’t want to look like just some random person. I want to look like I’m probably from Amazon, so I wear really visible stuff, so I’m not skulking around in a black hoodie, and I do that intentionally. I want to stand out as much as possible so people see me,” King said. 

Drivers like King who primarily deliver in the evening hours urge customers who are expecting packages after 4 p.m. to leave their front porch light on, so that the driver can first find your house number, but more importantly, be able to see where they are walking and placing the packages, so that they don’t trip on extension cords or lawn furniture that could result in an injury.

(Editor’s note: As Flex drivers, King and Harbaugh are both independent contractors for Amazon and are not considered Amazon employees.)

“If I deliver to the wrong house I could get shot for trespassing,” King said. “The navigation gets us really close, but that doesn’t mean I am not going to next door neighbor’s, who are strung out on meth, armed to the teeth and has a rottweiler.” 

King said although she tries to be prepared for any likely scenario, she doesn’t think too much about how she may be targeted or followed. 

“If I was thinking like that, I wouldn’t be able to do this for a living,” she said. 

Editor’s note: In a statement to Business Insider, an Amazon spokesperson said, “The safety of our drivers is our top priority.” Amazon did not respond to further inquiries about the specific circumstances brought up by the subjects in this piece.

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