Previously I’d written about California’s AB-5, which put heavy restrictions on the number of articles freelance writers could sell. That was ultimately amended, after some major companies stopped using freelancers.

A bill now in Congress is raising similar concerns. It’s different from AB-5 in important respects but is still disturbing. The “PRO Act” has passed the House of Representatives and gone to the Senate. It would require clients to treat freelance writers as employees, but only in certain respects. To be exempt, writers would have to pass all three requirements of the “ABC test”:

• A. Being free from control and direction in the details of performing the service.
• B. Performing a service outside the usual course of business of the client.
• C. Being established in a business of the same nature as the service performed.

The real killer is B. The written word is central to the publishing business, so publishers wouldn’t be able to treat writers as independent contractors for the relevant purposes. Other businesses, such as ones hiring tech writers or ad copywriters, might still be able to.

The “PRO Act,” incidentally, uses a bit of dishonesty which is common in legislation. A piece of legislation is a bill, not an act, until it becomes law. Calling it an “act” presents the impression of a fait accompli. From here on, I’m going to call it the PRO Bill.

The important difference between the PRO Bill and AB-5 is that the former doesn’t mandate treating independents as employees for all purposes. It would nominally remove a restriction; writers would be able to organize in the manner of unions. Contractors who organize this way risk violating antitrust laws. On the surface, this sounds like a free-market measure.

But there are immediately reasons for suspicion. If it’s so good, then why do we have to meet a test to avoid its “benefits”? Why not say that all individuals whose business consists of providing personal services can organize to set minimum rates, require prompt editorial decisions, etc.? Why should tech writers be treated differently from columnists?

The answer is that unionization in the United States isn’t really a free-market activity, and the PRO Bill would make it even less so. It would attack writers’ privacy, forcing clients to turn their “employees'” personal contact information to unions. It would limit or overturn state right-to-work laws. Votes to unionize would lack the protection of a secret ballot. If you don’t want to join a union, you may be free to keep writing for your client — but only if you pay dues to the union.

The burden would fall most heavily on people who write just occasionally or are trying to break into the field. If you make just a couple of thousand dollars a year, the cost of propitiating a union probably isn’t worth it. The bill would create barriers to entry in the writing business.

The bottom line is that the PRO Bill isn’t as draconian as AB-5, but it could still cause serious problems for writers in the guise of benefits. It would treat exemption from these “benefits” as a privilege that only some writers would enjoy. Basically, it’s legislation to give unions more power over workers.