All workers should have wage and hour protections

All workers should have wage and hour protections

Althea Erickson

Althea Erickson is the Director of the Sol Center for Liberated Work, a program of the Center for Cultural Innovation. Previously, Althea was the Vice President of Global Government Affairs and Impact at Etsy, and Advocacy & Policy Director at Freelancers Union.

The recent political fights over misclassification–whether a worker should be classified as an employee or independent contractor–have been fierce, and a major priority of the labor movement.

Labor leaders often argue that the best way to protect all workers is to classify them as employees, while their antagonists–companies that rely on contract labor–often tout workers' desire for flexibility and independence without acknowledging their twin need for security and protections. As the public debate has become more polarized between these two positions, true independent workers–those who are not misclassified–are often overlooked. 

Many arts workers fall into this middle category, and found themselves caught up in the debate around AB-5 in California, which established a much more stringent “ABC test” for determining whether a worker should be classified as an employee or an independent contractor, changing many arts workers from independent contractors into employees overnight. At the time, we commissioned the Urban Institute to publish an analysis of the proposed classification law on arts workers. Lawmakers in California are still sorting out the details of implementation, first through A.B. 2257, which exempted many arts professions from the law altogether, and more recently through S.B. 1116, which seeks to support nonprofit arts institutions' capacity to comply with the law. Other states are considering similar legislation, but the topic remains fraught. 

The federal government is also looking at the issue of classification. In August 2022, the Department of Labor put out a request for comments on its new proposed classification rule. Though the proposed rule didn’t mark a meaningful departure from the status quo (it rolls back a Trump era rule that was put into place during the waning days of that administration), the open comment period felt like an important opportunity to uplift the experiences of arts workers and others working in the gig economy who may be rightly classified, but lack worker protections under labor laws.

We worked with allies in the arts to solicit feedback about arts workers' experiences, and heard about frustrations some creatives feel having to choose between security and flexibility, as well as common challenges bargaining for fair pay, given that independent contractors are not allowed to collectively bargain under the law. 

Ultimately, we submitted these comments to the Department of Labor, which broadly supported the new rule because it enables more flexibility than the ABC test to determine a worker's classification, ensuring that those who are misclassified can get reclassified, while also allowing courts to consider the more nuanced circumstances many arts workers operate under. We also made the broader point that all workers, regardless of their classification, deserve wage protections and the right to collectively bargain. 

Current law makes it difficult for independent contractors to collectively negotiate wage and hour standards and protections. We believe this could be rectified through several reforms, including allowing independent contractors to form unions under the National Labor Relations Act (NLRA), allowing secondary boycotts under the NLRA, clarifying that independent contractors may set industry wage standards and overtime protections without violating antitrust law, and enabling sectoral bargaining models that include independent contractors. 

It bears mentioning that the issue of classification is tantamount to worker protection because we have, as a society, tied so many protections to employment. While proper classification of workers is one path to ensuring worker protections, it is not, and cannot, be the only path to ensuring that all workers have the social and economic protections that they deserve.

We believe that arts workers–and other gig workers who share their precarity–should not have to choose between the security and protections currently tied to full-time employment, and the flexibility, independence, and ownership rights that come with independence. As a society, we should guarantee flexibility AND security to all workers, regardless of their employment status.

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by gholme4

Reimagining paid leave for the self employed

 

What might a truly great paid leave program look like for the self-employed? And, if we can get paid leave working for independent contractors, how might that become the model for delivering other types of safety net protections?

The question of making paid leave work for the self-employed is a little more complicated than it might seem. Just look at the differences between the 12 states and municipalities that already have paid leave programs, and you start to realize that there are many different answers, and unfortunately, very few policy makers have considered the question at all.

Some states require independent workers to pay twice what traditional employees pay into the system, while others have multi-year waiting periods between enrollment and the ability to use the benefit. Across the board, very few governments invest in getting the word out to independent workers, so take up is usually dismal, regardless of program design. 

When it comes to the self-employed, policy makers seem stuck on trying to retrofit program designs that work for employees, rather than designing something based on the needs, challenges, and specific ways non-traditional workers earn income, especially those operating at the margins, like informal workers, street vendors, and undocumented workers, among others.  

That’s why, on October 3rd, 2022, we co-hosted a convening, entitled Paid Leave for the Self-Employed, alongside the Center for American Progress (CAP) and the Freelancers Union. The hybrid event, held in-person at the CAP offices in Washington DC, as well as virtually, brought together representatives of the independent workforce alongside policy experts and advocates working on the issue of paid family and medical leave. 

The goal of the event was to imagine what a truly great paid leave benefit for the self-employed might look like, and chart the beginnings of a path to advance that vision. The event laid the groundwork for future relationships and alliances among participants (many of whom had never met before), while simultaneously bringing both worker advocates and paid leave policy experts into a deep discussion about the opportunities and challenges of imagining a system that actually works for the most excluded workers. 

Going forward, we’ll be publishing the outcomes of the discussion, as well as working with participants to advocate for more inclusive paid leave policies at the state and federal levels. 

 

Convening Participants 

Drew Ambrogi, Coworker.org 

Dedrick Asante-Muhammad, National Community Reinvestment Coalition 

Jennelyn Bailon, Center for Cultural Innovation 

Chanda Causer, Main Street Alliance 

Althea Erickson, Center for Cultural Innovation 

Rafael Espinal, Freelancers Union 

Aurelia Glass, Center for American Progress 

Cassandra Gomez, A Better Balance 

Pronita Gupta, Workshop 

Adrian Haro, Workers Lab 

Josie Kalipeni, Family Values at Work 

Angie Kim, Center for Cultural Innovation

Namatie Manseray, MomsRising 

Nathaniel Marro, Music Workers Alliance 

Jake McDonald, National Partnership for Women & Families

Sapna Mehta, Center for Law and Social Policy

Hope Mohr, Guilded 

Mary Rasenberger, Authors Guild 

Vasu Reddy, National Partnership for Women & Families Bela Salas-Betsch, Center for American Progress 

Vicki Shabo, New America Foundation 

Meredith Shaffer, Public Private Strategies 

Naomi Smith, Main Street Alliance 

Shelly Steward, Aspen Institute Future of Work Initiative

Meredith Tannor, Freelancers Union 

Molly Weston Williamson, Center for American Progress 

Haeyoung Yoon, National Domestic Workers Alliance

Jeffrey Zubricki, Etsy

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by gholme4