PRO Act (or, AB5 looks to go nationwide)

M

mcbob

Veteran
Some slopes are indeed slippery....

https://www.cnbc.com/2021/02/04/dem...-labor-rights-bill-during-covid-pandemic.html

From the article:
KEY POINTS:
- Democrats reintroduced the PRO Act, the sweeping labor rights bill the House first passed last year, as they stress the need to improve worker benefits and safety during the coronavirus pandemic.
- The legislation would allow financial penalties on companies that violate labor laws and aims to reduce the use of the independent contractor classification for workers, among other provisions.
- Republicans and major business groups have opposed it, making its passage in the Senate doubtful.

.....The party put forward the PRO Act, a measure designed to promote union organizing and approved by the House last year. The legislation would:

Allow the National Labor Relations Board to levy fines against employers who violate workers’ rights
Give employees more power to participate in strikes
Weaken so-called right to work laws
Offer certain independent contractors the protections held by employees
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Of interest to us.... it would make illegal any independent contractor arrangement where the worker provides services within “the usual course of the business of the employer." So, for example, you're a video producer contracting with a video producer in another state... you have to be brought on as an employee. Contract for a network? Nope... have to be an employee. Hard to say how far up this goes. Conceivably, since YouTube also produces video content, YouTube might need to "employ" anyone it pays for content.

They instituted a similar law in VA recently, to little fanfare, and it cost me a couple clients (granted, they were kind of low-quality clients that I didn't mind losing, but the concept is worrying). If this law goes national, I will lose at least my four largest clients, or about 80% of my income, unless each of them brings me on as an employee (at likely lower pay and zero freedom).

As to the "protections"... well, as a contractor, I protect myself. I put cash into savings. I don't work for careless or objectionable clients. I charge what a job costs, plus whatever profits I want to make within a mutually-agreed bounds. If I'm not paid on time, I charge penalties, or send to collections if not paid at all. If one client goes belly-up, it doesn't kill my entire income and I can shift to other clients (or find new clients). I'm not sure what these people aim to protect me from, aside from the "risk" of freedom in my job deciding when, upon what, and for whom I choose to work.

Don't know what your personal situation is, but if you're one of the full-time freelancers like me, you might want to contact a few of your local congressional/senatorial representatives. Their cabal has likely already made up their minds for them, but who knows.
 
I'll likely a done deal in the House but will get challenged by the individual states.

The rest is politics as usual.
 
Folks, proposed laws are just that - proposed. And even passed laws are not written in stone. Laws are made by lawmakers, they don’t come down to us from the sky - it’s in the name Law-Makers. Lawmakers are (for the most part) elected, they represent (or are supposed to) their constituents/voters. This is where you come in. You provide feedback and they’d better listen, or else.

I’m not saying corruption doesn’t exist - it exists in spades (hello, lobbyists and special interests!) - but don’t ascribe to malice what can be explained perfectly well by ignorance, incompetence and arrogance. No lawmaker is a specialist in every field they make laws in, and nobody can possibly anticipate unintended consequences (it’s in the name - unintended!). Therefore, it is incumbent on those who are specialists in the field, because they are the ones being affected by the new laws, to come forward and provide guidance to the lawmakers. Even if the law passes, we might eventually find out that the consequences while unanticipated are negative (or some consequences). At which point - hello, you revise the law!

Have we learned nothing from the history of AB-5 in California? As I said from day one - while some of the intent behind the law might have been good, it was a terribly flawed law. But the reaction to it is where I guess we all differ. My stance has always been and continues to be - FIGHT for what is right. Don’t just complain - and senslessly vilify wrong targets like the whole of California, LOL - but give of your time and expertise... because if not you, who? Everyone always waits for the other guy to do the work - which is how we end up with a disengaged public and bad laws. Sorry, but citizenship entails obligations - if the voters don’t participate, who is going to do it for them?

Now is the time to mobilize. If you don’t, your complaining later sounds hollow - “OK, well, what did you do about it?”. Lawmakers are not mind-readers and all-knowing. Somebody needs to guide them. That’s where YOU - the voter - come in.
 
They can take my freelance clientele when they pry it from my cold dead hands. I will be contacting my representatives and I suggest you do as well. Daily. Email should work fine. I havent been able to get anyone on the phone lately.

DLD said:
I'll likely a done deal in the House but will get challenged by the individual states.

The rest is politics as usual.
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That doesn't mean diddly if it can't pass the senate. They can't pass a law like this using budget reconciliation but I doubt even all the democrats would be on board.

I think there are problematic sectors of the labor economy but my little corner is not one of them
 
There are definitely issues in the freelance world, but a lot of those come down to freelancers allowing themselves to be taken advantage of, or a gigantic employer hiring largely freelance staff but treating them like employees without any of the benefits.

Independent contracting has exploded with the gig economy, but IMHO many contractors are trained in the "employee" mindset and don't really know their actual rights, nor necessarily have an entrepreneurial spirit allowing them to fully realize the benefits of that independent status.

{WARNING: ENTERING MILD RANT MODE}

This isn't a huge surprise since government 'education' is based on the Prussian system for churning out factory workers, soldiers, and clerks. It trains obedience more than independence or critical thinking. There are clear hierarchies, and missteps are punished.

Consequently, a lot of these labor laws, especially where independent contracting is concerned, are deeply flawed because they're built on that complete lack of understanding of two parties entering a mutual arrangement trading value for value... instead, they see everything as a heirarchichal power play, with one party intrinsically having an advantage over the other. That paradigm is disappearing. Many of our clients can't get their work done in the way they want it done without us. If they're buttcheeks, we can (and do) decline further work with them. Citizens have more ability than ever before to operate their lives at a truly egalitarian level in regards to work and value exchanges. If everyone is a "boss," there is no "boss." Workers don't need "protection." All we need are contracts and an impartial legal system. We all operate as peers, and the power hierarchies that Progressives rail about - evaporate.

The employer-employee paradigm is, at its heart, an extension of indentured servitude. Employees willingly give up freedoms in exchange for temporary safety and security... you might love the nightly buffets, but chaining yourself to the Titanic also has inherent risks. There's so much good to be said about decentralization.
 
ahalpert said:
... That doesn't mean diddly if it can't pass the senate. They can't pass a law like this using budget reconciliation but I doubt even all the democrats would be on board.
Click to expand...

The proposing party has the senate tiebreaker, so its own members would have to object, which is very remote. It's far more likely that they get additional votes from across the aisle.

Which is indeed politics as usual.

mcbob said:
... This isn't a huge surprise since government 'education' is based on the Prussian system for churning out factory workers, soldiers, and clerks. It trains obedience more than independence or critical thinking. There are clear hierarchies, and missteps are punished...
Click to expand...
You don't train good good soldiers - unless it's Švejk - by preaching obedience. The Prussian military school was far more flexible in its command structure than any other.

As to laws - there are no "unintended consequences". Everyone knows what leads and what follows the lead. No matter how it's sold to the public.
 
DLD said:
The proposing party has the senate tiebreaker, so its own members would have to object, which is very remote. It's far more likely that they get additional votes from across the aisle.
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But due to the filibuster, you would need 60 votes to pass this legislation, ergo all Democrats plus 10 Republicans.

Joe Manchin has a strong conservative streak and would be one vote that might not go along.

Would the bill get 10 or 11 Republican votes? I kinda doubt it. But the vote counting largely comes down to the local and institutional interests that specific senators represent, plus their personal ideology. Rand Paul for example - obviously not since he's libertarian. Mitt Romney - frankly, probably not him either because he's strongly corporatist and many corporations benefit from flexible contracting.

More or less, the bill seems like union-friendly legislation and also social policy to combat exploitation of people like full-time Uber drivers who are essentially employees without benefits. I'm not sure there are many politicians of either stripe in the Republican party.

Anyway, if every freelancer in NY contacted our senators every day and threatened to vote against them in the primary and/or general election if they supported the bill, they would not vote for it.
 
It needs 60 votes in the senate to pass.

But yes - call them.

I believe california has already made carve-outs for ohotographers/videographers but i dont think those are even in this bill...
 
ahalpert said:
It needs 60 votes in the senate to pass.

But yes - call them.

I believe california has already made carve-outs for ohotographers/videographers but i dont think those are even in this bill...
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I don't care if they make a carve-out specifically, personally, for me in perpetuity. Too many in too many industries are still affected. Freedom is freedom... and this ain't freedom.

Already worked four jobs as an "employee" this year, upon which I wasted an approximate 352,521 hours each to do their damned paperwork alone. If I could get away with an "employee surcharge" for that wasted time, I would.

Restructuring the business in the meantime, which alone brings a metric buttload of regulatory headaches.
 
Some companies were willing to pay me by invoice, but only if I was a C or S Corporation. Sole proprietors and (for some dumb reason) LLCs didn't' get that common courtesy.

...but in honesty, who the F knows what the final necessary hoop obstacle course will be laid out before this is all over.
 
mcbob said:
Some companies were willing to pay me by invoice, but only if I was a C or S Corporation. Sole proprietors and (for some dumb reason) LLCs didn't' get that common courtesy.

...but in honesty, who the F knows what the final necessary hoop obstacle course will be laid out before this is all over.
Click to expand...

I've brought this up a few times over the last few years... I have a HUGE client that I work for, and even though I am incorporated(S corp), they still treat me as a sole prop. Back around 2015 they started limiting "freelancers" days that they could work for the company so that they could not be labeled/considered/classified as employees and everything that would come with that(paying benefits, medical, etc.). So I incorporated to get around the cap and have not invoiced them one red cent as an individual since. My company invoices. But, because I do not have any employees, besides myself, they still limit my days, as if I were an individual and not a company.

There have been others in my same position who have also challenged this "double standard", and it's always met with something to the effect of "our legal department says you are not eligible for an exception to the day count". There have even been some that have even seriously contemplated legal action against them, but what does that net you in the end? Because all of a sudden, you are no longer called for anything.
 
mcbob said:
Some companies were willing to pay me by invoice, but only if I was a C or S Corporation. Sole proprietors and (for some dumb reason) LLCs didn't' get that common courtesy.

...but in honesty, who the F knows what the final necessary hoop obstacle course will be laid out before this is all over.
Click to expand...

Run&Gun said:
I've brought this up a few times over the last few years... I have a HUGE client that I work for, and even though I am incorporated(S corp), they still treat me as a sole prop. Back around 2015 they started limiting "freelancers" days that they could work for the company so that they could not be labeled/considered/classified as employees and everything that would come with that(paying benefits, medical, etc.). So I incorporated to get around the cap and have not invoiced them one red cent as an individual since. My company invoices. But, because I do not have any employees, besides myself, they still limit my days, as if I were an individual and not a company.

There have been others in my same position who have also challenged this "double standard", and it's always met with something to the effect of "our legal department says you are not eligible for an exception to the day count". There have even been some that have even seriously contemplated legal action against them, but what does that net you in the end? Because all of a sudden, you are no longer called for anything.
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Wait. Now I'm confused. I've usually ignored these kind of a threads because, well, the way "around" this is to stop being an LLC or sole-prop and become incorporated - ie S-Corp as R-n-G has done. Is it a pain in the arse... yeah probably, and does likely make you need to reach out to another professional service (ie accountant and /or lawyer). But how is it that you could be treated the same once you are invoicing them as a corp / business instead of an individual?
 
markfpv said:
Wait. Now I'm confused. I've usually ignored these kind of a threads because, well, the way "around" this is to stop being an LLC or sole-prop and become incorporated - ie S-Corp as R-n-G has done. Is it a pain in the arse... yeah probably, and does likely make you need to reach out to another professional service (ie accountant and /or lawyer). But how is it that you could be treated the same once you are invoicing them as a corp / business instead of an individual?
Click to expand...

I'm guessing they're worried about the ABC test and potentially getting sued by a union...not too sure

Under the ABC Test, a worker is presumed to be an employee unless the employer can show that all three of the following conditions are satisfied: 1) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, 2) the worker performs work that is outside the usual course of the hiring entity’s business, and 3) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
Click to expand...

Under that rubric, I don't think that incorporating is a get out of jail free card.

This is a good resource for looking up one's senators' phone numbers: https://www.democracyinitiative.org/contact-your-senator-today

You'll probably have to leave a message. I just tell them I'm deeply opposed to the PRO act because I'm a freelance videographer, I make good money and I worked hard to build my clientele. Getting a full-time job would mean less money for more work. Then I leave my name, number, and zip code.
 
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