The Freelance Creative

Does the ABC Test Already Exist in Your State, and Could It Harm Your Career?

In April, Good Housekeeping accepted a pitch from freelance writer Ericka Andersen. She was ecstatic.

“I immediately started reaching out to experts about my subject matter,” Andersen said. “I dug into the story right away, and I filled out all the paperwork.”

The glee was short-lived. About three days later, the editor emailed Andersen to say that Hearst, the magazine’s parent company, was rescinding the offer.

In an email obtained by Contently, the editor said that Indiana, Andersen’s home state, uses a restrictive, three-part ABC Test to determine whether contract work is legal—along with Massachusetts, Alaska, West Virginia and more than 20 other states. The editor explained that Hearst could not work with freelancers in any of those states.

“Under Hearst, I can’t write for Good Housekeeping, Marie Claire, Glamour—there are so many,” Andersen said. “I vaguely knew what the ABC Test was, but I’d never heard of it affecting anyone. I was so upset.”

Andersen is not alone. Many states have some form of the ABC Test deep in their bylaws. However, it wasn’t until last year that controversy in California brought the test into the spotlight, scaring away employers like Hearst, Vox, Scripted, Patch and more, according to those companies’ job posts in the last year. Now, with national ABC Test legislation in Congress and public awareness rising, more freelancers report being turned away from work because they pose a legal liability to the publisher.

Getting caught in the ABC Test’s wide net

On a basic level, Andersen’s problem is this: If she does not pass the ABC Test (most freelance writers do not), she must be considered an employee of the company, with all the bells and whistles of a full-timer.

“We don’t want to be treated as an employee,” Andersen, a mom of two small kids, told me. “And that should be an option. Freelancing is not easy, but I’m choosing to do it because I want to work for myself.”

Andersen tried forming an LLC to fit the “C-prong” of the test, which requires independent contractors to prove they operate an obvious independent trade. Hearst responded by saying the problem, however, was the test’s “B-prong,” which states that independent contractors have to work in a different industry than their employers. The stipulation essentially eliminates all freelance writing, as well as most consultant work, film industry work, and a litany of other jobs. (The A-prong says the worker must be free from the control of the hiring entity.)

Unsurprisingly, many freelance creatives do not support the ABC Test. At the end of last year, The Freelancer surveyed more than 500 of them and found that 88 percent disapproved of California’s Assembly Bill 5 (AB5), which sought to change the way companies classified freelance contributors. Seventy-five percent were freelance by choice, and 90 percent percent said AB5’s limits could negatively impact their livelihoods.

Political motives may have sown chaos for workers

Freelancers need flexibility, particularly during this debilitating pandemic, according to Robert Roginson, an employment and labor attorney who has worked closely with truckers in California to fight the ABC Test. On the employer side, many companies, especially small or mid-sized ones, can’t afford to take on full-time employees.

“This has been disruptive to so many long-established industries,” Roginson said. “The big lie by advocates of the ABC Test is that all workers are abused and subjugated by their employers. But many workers like the flexibility, and various industries have matured in that recognition.”

California’s AB5 law was created to curb exploitation of gig workers, such as Uber drivers and DoorDash delivery workers. However, the broad language forced unexploited, willing independent contractors to be subject to the law as well.

Rage, job loss, and national controversy forced California to revisit the law’s language several times. Truckers and writers sued the state. California added more industry exemptions to the law, and eventually nixed its previous, arbitrary 35-submission cap on freelancer writers in late August.

“The fact they have to keep adding more reflects the fact that the ABC Test is fundamentally flawed,” Roginson said. He believes there must be a way to separate low-wage gig workers from higher-wage, unexploited freelancers in labor legislation.

Even during the pandemic, California doubled down on enforcing the test, which is unilaterally supported by the AFL-CIO and front-runner presidential candidate Joe Biden, who is looking to pass it via the federal P.R.O. Act. The AFL-CIO’s national president Richard Trumka has publicly threatened Democratic candidates, saying that the organization will withdraw funding if they do not vote for it.

Detractors of the ABC Test, including Roginson, argue that the push is a ploy for the AFL-CIO to increase its membership at a time when union numbers are flagging. The AFL-CIO did not respond to Contently in time for publication.

Some freelancers want better options

For those fighting the ABC Test (like me, a leader of the thousand-strong New York Chapter of Fight for Freelancers, an unaffiliated, unfunded national grassroots group that formed in response to the test), it seems to be cropping up everywhere. In states like Indiana, where the law has been lying dormant for decades, legislators don’t even seem to know it exists.

Other states, like New Jersey, New York, Georgia, and Illinois tried to codify versions of the test in the past year, though many of these efforts have been temporarily shelved due to COVID-19.

However, the New York City council only recently introduced Intro. 1926, which requires companies to comply with the ABC Test—and its many, many exemptions—or else offer its workers sick leave.

My group has informed the city council that the test scares away employers, which is the last thing we need during a pandemic. If a government is trying to target specific companies like Uber or Handy, they should work to target only those companies—even though, historically, they simply sue the government and refuse to comply.

Most of the people in my group are working mothers who need flexibility. We are tired of making these arguments, but our livelihoods are at stake.

Attorney Mercedes Colwin, a partner at New York’s Gordon Rees Scully Mansukhani LLP, said that while politicians should be thinking about ways to help workers during the COVID crisis, applying the test seems hasty during a time of massive upheaval.

“These times are so scary. Slow it down when you’re making decisions,” Colwin said. “We have to think very carefully about how we approach everything. I don’t think there’s that level of introspection when lawmakers are really anxious.”

If the ABC Test gets passed on a federal level, one potentially dire outcome is that employers could move to outsource their contract work abroad.

“That would be short-sighted because of course you want to hire the most talented employees,” Colwin said. “But I don’t see there being any restrictions on outsourcing in our free market. There has to be out-of-the-box thinking to make sure everyone is protected.”

Roginson thinks that public outcry is our greatest defense against the ABC test. “Speak up to lawmakers. Talk about the extent to which you enjoy the flexibility of working for yourself,” he said. “In the current environment, the company’s voice is not being heard, but the worker’s voice is.”

To learn more about national efforts to fight the ABC Test, visit Fight for Freelancers USA.

Halley Bondy is a professional freelance writer, journalist, editor, producer, and mom based in Brooklyn. Her work has appeared in NBC News, Daily Beast, DAME Magazine, Eater NY, Bustle, Romper, The Outline, Oxygen, CMT, Scary Mommy, Vice, New York Daily News, MTV, and more. She writes scripts for the “Masters of Scale” podcast, and had written for “You Must Remember This.” She is leader of the New York chapter of Fight for Freelancers USA, an unfunded, unaffiliated group of freelancers fighting the ABC Test.

Photo credit: z_wei

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