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The Guild’s Proposed Amendments to the PRO Act

March 29, 2021

Click here to see the Authors Guild’s latest proposals around collective bargaining.

The PRO Act amends the NLRA to provide stronger collective bargaining rights and expand the group of workers who qualify for collective bargaining. The Authors Guild has long lobbied for collective bargaining for freelance writers and creators; and it supports the PRO Act—but with a clarification to ensure that all freelance writers and authors are covered and that they retain their copyrights.

The PRO Act recognizes the fact that many gig workers are independent contractors who lack bargaining power and need collective bargaining. It provides a large group of freelancers with collective bargaining by amending the definition of “employee” in Section 2 of the NLRA. “Employees” (as defined) are given the right under Section 7 of the NLRA “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”

The PRO Act adds to the NLRA’s definition of “employees” individuals who provide services and fail to meet all three prongs of the ABC test in connection with the services being provided. Or to put it another way, all freelancers who provide services are covered by the NLRA unless they meet all three prongs or the ABC test.[1]

The Authors Guild has proposed adding language to Section 2 of the PRO Act to clarify that the creation of copyrightable content is covered, and that nothing in the Act will affect copyright authorship or ownership.

We have two proposed amendments to the PRO Act below with our added language highlighted in red.

Alternatively, we propose a simple antitrust exemption for writers and artists. A draft antitrust exemption is also attached.

AUTHORS GUILD’S PROPOSAL FOR REVISIONS TO THE PRO ACT

Currently section 2 of the PRO Act says:

(2) EMPLOYEE.—Section 2(3) of the National Labor Relations Act (29 U.S.C. 152(3)) is amended by adding at the end the following: “An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor unless—

  1. the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
  2. the service is performed outside the usual course of the business of the employer; and
  3. the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

Our two alternative proposed additions to section 2 are below:

PROPOSED AMENDMENT 1

Notwithstanding anything else in this section 2(3), an individual performing “creative professional services” (as defined in section 2(15)) shall be considered an employee for purposes of, and solely for purposes of, Title 29, the National Labor Relations Act, and this designation shall not affect copyright authorship or ownership under Title 17, the Copyright Act, nor employee designation under any state law.”

PROFESSIONAL CREATIVE SERVICES. —Section 2 of the National Labor Relations Act (29 U.S.C. 152) is amended by adding at the end the following:

“15. “Professional creative services” means professional services or work product provided, under contract and on a freelance basis for present or future compensation, by any of the following individuals:

                 (a) writers, including authors, playwrights, screenwriters, journalists, copywriters, or digital media writers or creators; 

                 (b) visual artists, including without limitation fine artists, graphic designers, photographers, photojournalists, animators, illustrators, industrial product designers, interior designers, or fashion designers;

              (c) songwriters, composers, or librettists; or

              (d) videographer or filmmaker.”

PROPOSED AMENDMENT 2

As used in this subsection, a “service” may include the creation of copyrightable content, and this designation shall not affect copyright authorship or ownership under Title 17, the Copyright Act.

[1] The ABC test in the PRO Act states:

“An individual performing any service shall be considered an employee (except as provided in the previous sentence) and not an independent contractor unless—

  1. the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
  2. the service is performed outside the usual course of the business of the employer; and
  3. the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

More Information

The PRO Act: How Would It Impact Freelance Writers? (Webinar)

In this webinar, Authors Guild CEO Mary Rasenberger and Director of Advocacy Umair Kazi discuss how an amendment to the NLRA would affect freelance writers, including how it would differ from California’s Assembly Bill 5 law.

The PRO Act and the ABC Test

This article addresses concerns many freelance writers have about classification problems arising from the ABC test.

Current Proposals

Click here to read about the Guild’s ongoing collective bargaining efforts.