Mike Rowe, popular TV show host, podcaster, and America’s most famous freelancer, recently declared a crusade against the Protecting the Right to Organize Act (PRO) Act. This bill is going through the U.S. Congress and, if it passes, would outlaw freelancing and take 70 million American freelancers’ financial freedom away.
The anti-freelance provision of the PRO Act is almost identical to California’s AB5 law. In 2018, when deciding Dynamex Operations West, Inc. v. Superior Court, California’s Supreme Court ruled that most wage-earning workers should be classified as employees, not independent contractors, and employers bear the burden of proof for classifying workers as independent contractors. California’s Democrat-controlled state assembly took the ruling and turned it into the notorious AB5 bill, commonly known as the gig worker bill. AB5 radically changed more than three decades of labor classification in the state and compelled employers to reclassify millions of independent contractors as employees. The employer must pass a complex test to classify a worker as an independent contractor.
AB5 supporters claimed the bill would protect workers’ rights. Yet the bill faced strong opposition. Many independent contractors worried they would lose their employment, and small businesses were concerned that since they couldn’t afford full-time employees, they would have to close their shops. California’s Trucking Association (CTA) filed its federal lawsuit against the California attorney general on Oct. 25, 2018. CTA CEO Shawn Yadon said, “In California, more than 70,000 owner-operators choose to work independently because of the freedom, flexibility, and business growth potential that business model provides. These small-business entrepreneurs face irreparable damage should AB 5 be allowed to exist as it relates to the trucking industry.”
But the Democrat-led state assembly ignored workers’ and businesses’ concerns and warnings and passed AB5 anyway. California’s Democratic Gov. Gavin Newsom publicly supported AB5 and signed it into law in September 2019. The legislation went into effect on Jan. 1, 2020. But thanks to CTA’s lawsuit, Judge Roger Benitez of the Southern District Court of California granted a preliminary injunction against enforcing the law on Jan. 16, 2020. AB5 only went into effect after the U.S. Supreme Court declined CTA’s request to review AB5 a year later.
Meanwhile, there were other efforts to reduce the damage caused by AB5. The state assembly passed AB2257 on Sept. 4, 2020, less than a year after AB5 became law. Rather than overturning AB5, AB 2257 created a long list of exemptions based on lawmakers’ connections with special interest groups, from musicians to photographers to freelance writers, to name a few.
Then, in November 2020, California voters approved Prop 22, which exempted companies such as Uber, Lyft, and DoorDash from having to classify their app-based drivers as employees. Prop 22 was a massive embarrassment for California’s Democratic politicians and their labor union supporters because they declared the original goal of AB5 was to compel these Big Tech firms to reclassify their gig workers as employees.
Jim Manley, an attorney at Pacific Legal Foundation, pointed out the apparent irony: “AB5 is so cut through with exemptions, it is defined more by what it doesn’t apply to than what it does cover. … There are now more than 75 exemptions to a law that was supposed to define labor rules for the entire state.” Yet California’s Democrats “are too stubborn to simply acknowledge their fundamental mistake and repeal it.”
Biden and Dems Push the PRO Act
Democrats always regard a policy failure as motivation to double down on the same bad policy. Despite AB5’s flop in California, President Joe Biden and Democrats in the U.S. Congress wanted to turn AB5 into a federal law. Rep. Robert C. “Bobby” Scott, D-Va., introduced the PRO Act. The PRO Act is a pro-union bill that would override 27 states’ right-to-work laws that have been in place since the 1950s. The PRO Act also adopts California’s AB5’s “ABC” test, excluding most American workers from exempt independent contractor status. Unions applauded the PRO Act because only employees have the right to form, join, or assist unions. More workers classified as employees means more recruits for unions.
It was disappointing that three Republicans, Reps. Brian Fitzpatrick of Pennsylvania and Chris Smith and Jeff Van Drew of New Jersey, signed on as co-sponsors, making the PRO Act appear to have bipartisan support. The PRO Act passed the Democrat-controlled House in 2021, including five “yes” votes from House Republicans. Fortunately, the bill didn’t make it out of the U.S. Senate. But never underestimate Democrats’ persistence. Almost a year ago, Sen. Bernie Sanders, I-Vt., reintroduced the PRO Act (HR 20/S 567) in the Senate, and Reps. Scott and Fitzpatrick reintroduced the legislation in the House. President Biden, who calls himself the most pro-union president, repeatedly called on Congress to pass the PRO Act.
Opposition
Rowe, who has worked as an independent contractor and calls himself a “chronic freelancer,” had enough of the Democrats and labor unions’ push for the PRO Act. He posted several short videos on X (see here and here), including interviews of various Americans working as independent contractors who love the flexibility and independence of their jobs. A national survey of more than 9,000 small business owners also shows the many ways the legislation could harm Americans:
- Seven out of 10 small business owners say the PRO Act would put them out of business or force them to hire fewer workers
- A majority of independent contractors anticipate losing 76 percent or more of their business
- Nearly half (45 percent) of all small businesses would be forced to shut down, as many depend on hiring freelancers to win business, manage costs, and keep companies afloat
- 62 percent of minority-owned businesses said they could suffer major losses
- 67 percent of women-owned businesses would lose most of their business, with many saying they are parents who freelance to accommodate children’s schedules
The last bullet point about the harm the PRO Act would likely cause to women-owned businesses is especially poignant because women have benefited the most from the gig economy, which enables them to take career paths that were previously not available to them and achieve financial freedom while still having the flexibility to meet other demands in life.
A few things that concerned citizens can do to stop the PRO Act from becoming law are: sharing Rowe’s videos about why it is terrible legislation and contacting congressional representatives and urging them to vote against it. We must prevent the harm caused by California’s AB5 from spreading nationwide and causing irreversible damage to American businesses and 70 million hard-working American independent contractors.
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