This Is Not Protection
Freelance busting takes many forms. This is an insidious, fast-spreading version.
If you had just stumbled out of the forest like a wide-eyed doe, oblivious to the nationwide freelance-busting attacks that independent contractors have endured in recent years, then you might see a tweet like this and think, Oh, that sounds good:
The same language—of protection—was used recently to promote a similar law in California:
And in New York State:
These “freelance worker protection” bills and laws, sometimes called “freelance isn’t free,” are popping up in multiple cities and states—the same locations that have been targeted for other types of freelance busting in recent years, too.
These new laws sure do sound harmless, and indeed, downright helpful.
In fact, they are insidious.
The people behind them are the same freelance-busting crowd that is trying to turn as many independent contractors as possible into unionizable employees.
Who Is Pushing These Laws?
The groups that have been most actively lobbying for “freelancer protection” and “freelance isn’t free” laws include the Teamsters—one of the most relentless freelance-busting attackers in recent years—along with three New York City-based groups called the National Writers Union, the Authors Guild and the Freelancers Union.
It’s the same unholy alliance we’ve seen again and again wherever freelance busting is involved. Here’s the Freelancers Union urging support for the PRO Act, which would take the regulatory language from California’s disastrous Assembly Bill 5 and spread it nationwide. Here’s the National Writers Union chiming in with their support. And the Authors Guild doing the same.
Their record is clear. So is their intent: They want to move us out of the category of small-business owners and into the category of unionizable employees.
Don’t take my word for it. Here’s Larry Goldbetter, head of the National Writers Union, talking with WNYC host Brian Lehrer back in 2022 about how independent contractors are not small-business owners at all, and what these laws are intended to do to us:
“[F]reelance workers are workers. This law will cover us under New York State Labor Law. It could be a first step in winning other protections as workers, like unemployment compensation or workers' comp.”
Unemployment and workers’ comp are for employees who have traditional jobs. They have nothing to do with small-business owners, freelancers, independent contractors, or any other way you want to describe the tens of millions of Americans who hang out a shingle and go into business for ourselves.
Mr. Goldbetter’s use of the term “labor law” is also significant and intentional. It’s a type of law that is specific to unionizable employees. As Georgetown Law explains: Employment law regulates the relationship between employers and employees. Labor law regulates the additional dimension that arises when employees select (or consider selecting) a labor union to represent them in their dealings with their employer.
Mr. Goldbetter went on, making his goals for these types of laws crystal clear:
“On the one hand, we see the potential of a union, and on the others, we see a crying need to make this illegal, this practice illegal, and also to have a bigger and stronger union.”
I challenged his organization on Twitter/X about a week ago, about the true intent of these laws.
Suffice it so say, their opinions and goals have not changed since that radio show aired in 2022:
Everyone. In a union.
That’s the goal of freelance busting.
What These Laws Do
The Illinois Department of Labor says its new Freelance Worker Protection Act entitles freelancers to the following:
A written contract that includes the name and contact information of the hiring entity and freelance worker;
Itemization of products and services;
Rate and method of compensation;
Date of compensation due;
Dates of services to be provided;
Full payment for the services by the due date in the contract, or if the due date is not specified, within 30 days of completing the services outlined in the contract;
Protection from retaliation and/or other negative action for exercising rights under this law.
Now, anybody who has been freelancing for more than five minutes will tell you that we already have a way to get all of these things.
It’s called a contract.
All of us who agree to take on any kind of freelance project negotiate a contract with the client. That’s how freelancing works. Being able to negotiate a contract is a core skill if you’re going to make a business deal of any kind.
Often, freelance contracts are just a page or two. Many contracts have similar clauses from client to client within the same industry. I know this because for years, I reviewed countless contracts as a member and then chairwoman of the Contracts and Conflicts Committee for the American Society of Journalists and Authors. Publisher after publisher used what was essentially the same basic template for freelance writers.
If one side fails to abide by the agreed-upon terms, freelancers have the courts to resolve the problem. Just as all business owners do.
In my more than 20 years of freelancing, I’ve only ever had to go to the courts once. I didn’t need a lawyer because I was owed an amount covered by small-claims court. I followed the instructions, filed the complaint, presented the contract, and noted the lack of payment. The judge ruled in my favor, and a city marshal collected my money.
All freelancers can do this. Right now, all across the country.
What changes with these so-called “protection” laws is that the government’s labor regulators can stick their nose into the business dispute.
Per the Illinois Department of Labor:
In other words, these laws inject the state labor department into the process ahead of the courts—where such departments have never before been in the mix.
Why would the freelance-busting crowd want a labor or other state agency involved?
Because those agencies can also allege that our clients have misclassified us as independent contractors when we really should be unionizable employees.
Surprise, surprise: The Illinois Department of Labor lists the link to its misclassification form right on the same page as the Freelance Worker Protection Act:
New York City’s version, which served as the model for the more recent New York State version, has information about misclassification up at the top, before all the information about what the law is actually supposed to cover:
Notably, the word misclassification did not appear in the Illinois legislation that created the Freelance Worker Protection Act.
Nor did the word misclassification appear in the New York City legislation.
That word is also not in the New York State legislation. I don’t see a similar webpage for public use on the state’s various sites yet, but the governor’s press release announcing the law quotes the same freelance busters from the National Writers Union and Freelancers Union, and makes clear how the same basic principle is in play:
“The Attorney General can bring actions to obtain remedies, including damages and civil penalties, on behalf of impacted freelance workers. Freelance workers would also have the right to pursue a private lawsuit to protect their rights under the new law.”
The word misclassification is also nowhere to be found in the Los Angeles legislation, which serves as the model for the statewide California version—however, it’s clear in the statewide version that, yet again, they’re trying to do the same thing:
“The bill would authorize an aggrieved freelance worker, the Labor Commissioner, or a public prosecutor to bring a civil action to enforce these provisions…”
The idea of reclassification is never explicitly stated in the marketing and promotion of these laws. And yet, the underlying language makes clear that these laws are intended to push independent contractors toward reclassification.
The big-picture plan—as the people promoting these laws have explicitly told us all—remains the same. It’s to subject us all to unionization.
Know It When You See It
Freelance busting is not any single thing.
It’s not only California’s Assembly Bill 5 or the federal PRO Act. It’s not only regulatory rule-making. It’s not only these “freelance worker protection” laws, either.
There will always be evolving variations of freelance busting—because unions desperately need new members, and most Americans don’t want to join them.
We all have the right to choose self-employment: to hang out a shingle, launch a business and earn income as independent contractors. If you see something that claims to "protect” us—especially if the freelance-busting crowd is promoting it—then ask yourself how it could instead restrict business practices that protect independent contractors from union organizers.
The truth is usually right there in the details, if you simply look for it.