Jeanne D’Angelo, currently a freelance illustrator, had a job interview at the Comcast headquarters in Philadelphia 13 years ago. The manager who interviewed her, who was employed by Comcast, told her she got the job. Then she was sent to a temp agency to fill out her new-hire paperwork. Like so many other workers, D’Angelo had been a temp before, and many of those jobs had been “temp to hire,” in her experience. “I just figured they’d eventually hire me,” she said.
This uncertain condition isn’t unusual. Temp or staffing agencies match employees to employers—in 2019, 16 million workers had temporary and contract employment. While the average length of temp assignments is only a few months, D’Angelo remained at Comcast for four years. In all that time, she was never hired by the corporation—she continued working for the temp agency for the duration of her employment. This meant that she didn’t receive her pay from Comcast, or any benefits. She was only paid an hourly wage by the temp agency, receiving no health care, paid sick leave, or paid vacation.
D’Angelo told The Nation that most other workers in her department, who were primarily women, were also temporary, full-time employees. Some of them, like her, worked for Comcast for years, without the rights and benefits afforded to other workers, perpetually waiting to be hired full time. D’Angelo saw only one temp coworker hired by Comcast, who eventually left after getting an offer for “a real job.”
When D’Angelo learned about the Protecting the Right to Organize (PRO) Act, which recently passed the House and is currently in the Senate, she wondered if it could have helped her at Comcast many years ago. The legislation would make it easier for workers to form unions by making captive audience meetings and other employer intimidation illegal; it also essentially makes “right to work” laws a thing of the past. But it would do more than that, too: It attempts to fix the immense employee misclassification that plagues millions of workers across the country—workers like Jeanne D’Angelo.
The PRO Act would determine a worker’s classification through the “ABC test,” which first originated in Maine in 1935 with the passage of a form of unemployment insurance. Since then, other states have adopted the use of the ABC test for similar purposes, along with wage and hour claims. The test stipulates that that a worker must be considered an employee and not an independent contractor unless the employer can satisfy three conditions: the worker is free from the control of the company, the worker is performing work that is outside the company’s usual course of business, and the worker has their own business that provides a similar service to other clients. Essentially, the PRO Act says that if a worker looks like a duck, walks like a duck, and works like a duck, it’s probably not an armadillo.
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The ABC test recently rose to infamy through California’s Assembly Bill 5 (AB5), legislation which used the three-prong test in hopes of regulating large gig companies with thousands of non-employee employees. Fifty-five million people in this country work in the gig economy, and yet none of these workers have bosses who are responsible for safe working conditions or who are liable if workers get hurt. Reasonable people can see this for what it is: an attempt at distorting reality. If someone is making money off your labor, they are your boss. The PRO Act attempts to right some of misclassification’s wrongs, along with making it easier for workers to form unions—and harder for bosses to get in the way.
As always, when it comes to labor protections in America, there has been a backlash—in this case oriented around gender. Op-eds and social media meltdowns have proliferated about the repercussions of the PRO Act for a certain subset of “non-traditional” freelance, gig, and contract workers. Judi Ketteler, a freelance writer, writes that the ABC test and the PRO Act will hurt “women, people of color and parents of children with disabilities, who often choose the flexibility of freelancing, especially if they’ve faced workplace discrimination.” For self-employed professional women like Ketteler, the PRO Act threatens potential loss of income and flexibility—a hindrance to the proverbial working woman who wants to have it all.
These fears are unwarranted, as generally less well-off freelancers have pointed out: All the PRO Act does is give additional rights, not take any away, and the vast majority of independent contractors need a leg up. “Most independent contractors are not doing well,” E. Tammy Kim explains in The New York Times. “Our median income is just $32,000 per year.”
Other complaints about the PRO Act rely on limited conceptions of womanhood. “Independent contracting empowers women,” says Beth Anne Mumford, in a column at Real Clear Markets. “As a working mother, I have personally benefited from independent work, which allowed me to raise my children while building my career.” Anyone is entitled to hold that opinion, but there’s often something more sinister—or at least more organized—in the background. Mumford is an employee of Americans for Prosperity, an organization founded by the Koch brothers, which actively works to curtail collective bargaining rights.
Patrice Onwuka recently wrote in The Hill that so-called “flexible work,” without traditional employment status, “was of utmost importance to women working in the gig economy even before the pandemic.” Onwuka is director of the Center for Economic Opportunity at the Independent Women’s Forum, a conservative women’s organization that grew out of the group Women for Judge Thomas, founded in the early 1990s to defend Clarence Thomas against Anita Hill’s allegations of sexual harassment. Now, the organization has a budget of over $1 million, with a mission to promote “flexibility” in the labor market—a clear euphemism for the kind of “nontraditional” work that tends to harm women rather than empower them.
In Jeanne D’Angelo’s case, she finds these characterizations “totally unrecognizable.” If the PRO Act had existed when D’Angelo worked for Comcast and the temp agency, she would have been classified as an employee of both entities—not just of the temp agency. She would have been able to organize as an employee of Comcast, with other Comcast employees—not just others employed by the temp agency. Because of the PRO Act’s language regarding the joint employer standard, she would also have been able to file claims against the company in the case of any employment abuse. Without it, if D’Angelo were a victim of wage theft while working at Comcast, she would only be able to sue her employer, the staffing agency. But staffing agencies that simply act as intermediaries or shells of larger corporations often have very little assets aside from payroll, leaving very little to be gained in any civil action by employees. This evasion of responsibilities is one of the ulterior motives for companies to use these kinds of temp agencies. The PRO Act would make this relationship far less useful and profitable, giving employers less incentive to funnel employment through temp agencies.
As D’Angelo puts it, “I don’t see how workers from any gender benefit from being prohibited from organizing together.” But the vast majority of women workers—especially contractors, gig workers, freelancers, and temp workers—will never be heard from regarding their thoughts on their work, wages, benefits, and of course, the PRO Act. That’s because these women, for the most part, are not wealthy, may be undocumented, and otherwise tend to work in the margins of our society. Women make up nearly half of all independent contractors—freelance illustrators, dog walkers, construction workers, yoga instructors—and sometimes they’re even our coworkers, doing the same work as us, but classified as temporary employees, just like D’Angelo at Comcast.
At Americans for Prosperity, Mumford writes that “many women prefer to be their own boss,” and that’s why they oppose the PRO Act. But even workers who are supposed to be their own boss have bosses. Veronica, an undocumented drywall finisher in Texas, works in the non-union construction industry. Because of her employment status as an independent contractor, she’s legally unable to unionize with other construction workers on her job site. Through an interpreter, she told The Nation that she has “suffered wage theft, sexual harassment, intimidation, and not being able to ask how much you’re going to make before the job starts. Whenever I speak to a contractor, I ask how much I’m going to make, and they always respond that they’re not going to tell me until they see my work.”
Norma, an undocumented painter in Arizona, has had similar experiences. On two occasions, she was sexually assaulted by a boss. She’s also had $15,000 of wages stolen from her. Because of her immigration status, even if she filed a wage theft complaint and won, her employer would not be legally required to pay her. “I’m afraid to do something and speak up because it may affect me in some way,” Norma said. The difficulties faced by workers like Veronica and Norma are manifold, but many of the issues that these two women have gone through—retaliation, wage theft, misclassification, and the right to unionize—are addressed by the PRO Act.
There is a small subset of wealthy women freelancers who are vocally opposed to the PRO Act, either because of their own self-interest or because they have a political agenda to push—namely, blanket opposition to unions. But to pass these beliefs off under the guise of feminism isn’t just cynical—it’s flat-out wrong. Hourly wages for women in unions are 23 percent higher than for non-union women. And while PRO Act opponents claim that freelance and contract work allow women the flexibility to care for their families, unionized workers are more likely to have access to paid benefits like sick days, vacations, and family and medical leave. These hard-won benefits allow them to balance work and family without sacrificing pay.
The vast majority of women in America would benefit from the PRO Act. Those who oppose it aren’t speaking for women—just for the wealthiest few.
