While noting the PRO Act will not come up for months, Schumer sought to assure Freelancers Union the U.S. Congress will not make same mistakes made in California
Senate Majority Leader Chuck Schumer (D, NY) gave a legislative update to the Freelancers Union on Saturday, February 6, which was live streamed. Facilitated by Freelancers Union President Rafael Espinal, Schumer’s update lasted little over 40 minutes.
With the reintroduction of the Protecting the Right to Organize (PRO) Act on Thursday by both House and Senate Democratic leaders, and Senator Tim Scott’s (R, SC) very detailed opposition shared at the Labor secretary designate’s Senate confirmation hearing on Thursday, the PRO Act definitely raised several questions at Saturday’s live stream among the freelancers.
During the Q&A, one of the core issues of contention in the PRO Act, the ABC test to determine if a worker is an employee or independent contractor the PRO Act mandates, came up.
The use of the ABC test came from the controversial California Assembly Bill 5 (AB5) law that was implemented last year.
Both Mr. Espinal’s question, and Senator Schumer’s answer are useful. The video is cued to specific nearly 3 minute discussion on the ABC test:
Senator Schumer’s reassurance to prevent the same mistakes in California from being repeated in the PRO Act will be believed once there are changes to the PRO Act legislation to eliminate the ABC test.
One of the reasons the AB5 law was first written was to address legitimate questions about worker classification. In California, the landmark Dynamex decision in the California Supreme Court brought worker classification to the forefront.
In an attempt to deal with the real challenge of worker classification, the California state legislature overcompensated, influenced by far Left academicians, implemented the ABC test as the legal determination to classify a worker.
Where California should have gone was to use the IRS test, according to Fight for Freelancers USA:
“It [IRS test] has evolved over the years to keep up with the changing nature of work in the United States, which means the IRS test can distinguish between a truly misclassified, exploited worker and a successful professional who works for [him]/herself.
“The antiquated ABC test cannot make that distinction. It’s old-fashioned language is why it attacks the livelihoods of our best and brightest in the creative class and beyond.”Fight for Freelancers USA “IRS Not ABC” page
The comparison between ABC vs. IRS is laid out at the Fight for Freelancers USA website here.
Majority Leader Schumer knows he only has a 50-50+1 majority and the PRO Act will take 60 votes to break a filibuster. The only way Schumer can achieve the 60 votes is through modifying the existing PRO Act legislation, and his quickest gains to get to 60 will be to replace the ABC test with the IRS test in the PRO Act, plus any legislation concerning the Fair Labor Standards Act (FLSA).
According to the press release from Senator Patty Murray from Thursday, 41 out of 50 Democrats (including independents who caucus with the Democrats) are cosponsors.
Three of the Democratic Senators not cosponsoring the PRO Act, Senators Joe Manchin (WV), Mark Warner (VA) and Kyrsten Sinema (AZ) have expressed concerns about the PRO Act. Freshmen Georga Senators Jon Ossoff and Raphael Warnock, being frrom a right-to-work state, have also not signed on as cosponsors.
The remaining 4 Democrat/independent Senators who are not currently cosponsoring the PRO Act are Angus King (ME), Mark Kelly (AZ), Dianne Feinstein (CA) and Jim Hickenlooper (CO).
Schumer’s reference to taking months before the Senate would take on the PRO Act infers the House will take it up sooner, and it can be referenced as H.R. 842.
Currently 198 House cosponsors have signed on including two Republicans: Brian Fitzpatrick (PA-01) and Chris Smith (NJ-04). Both voted for the PRO Act a year ago today, along with three other Republicans.
From the desk of John Lopez: The ABC test must be eliminated from the PRO Act and replaced with the IRS test if the proponents genuinely want to codify worker classification in a way that is fair to workers who want to self-determine how they will work and market their labor.
Freelancers, gig economy workers and all 1099 independent contractors are at risk, which makes freelance cartoonist Jim Thompson’s view be genuine and true concerning the ABC test:
As a Democrat whom I converse with on Twitter regularly said last year, the PRO Act needs work.
Update 2/26/21: Senate bill version filed as S. 420
On Wednesday, February 24, Senate sponsor Patty Murray (D, WA) filed the Senate version of the PRO Act under S. 420. The House version remains H.R. 842.
The filing on Congress.gov listed a total of 45 cosponsors with Senator Murray. There are no Republicans cosponsoring, and the 5 non-Republicans who’ve not signed onto the PRO Act in its current form are:
- Joe Manchin
- Kyrsten Sinema
- Mark Kelly
- Mark Warner
- Angus King
With the filibuster in place, 60 affirmative votes on cloture for PRO Act to receive a Senate vote in its present form looks doubtful.
The House takes up its version, H.R. 842, during the week of March 8 in the House Education and Labor Committee.
Whether the House committee takes action to amend H.R. 842 remains to be seen but the more proactive members in both party should see the Senate potential vote count and know the original form of PRO Act is not going to fly in the Senate, and start making changes week of March 8.