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PRO Act Threatens W.Va.’s Entrepreneurial Spirit

The entrepreneurial spirit runs deep in West Virginia. From the pioneers who first conquered her rugged landscape to the 114,000 small business owners who today thrive in our communities, we’re an independent and resourceful people.

I’m an entrepreneur myself. Eighteen years ago I launched my own freelance writing business. Since then, I’ve written marketing materials for hundreds of companies across the country and around the world while happily living, working and paying taxes in West Virginia.

Freelancing has allowed me stay here while many others of my generation had to move out of state for job opportunities. It’s given me the flexibility and time to raise our daughters the way I wanted to, to be involved in their schools, to help care for my parents — including my mother, who has Alzheimer’s — and to volunteer in my community.

Unfortunately, legislation making its way through Congress is threatening that entrepreneurial spirit both in West Virginia and across the country. In the name of protecting some workers from exploitation, it could inadvertently put millions of independent, small business owners like me out of work.

Called the Protecting the Right to Organize, or PRO Act, this legislation aimed at protecting workers’ rights contains language called the ABC Test, which is designed to clarify who qualifies as an independent contractor and who should be hired as a W-2 employee.

It’s true, there are instances where companies hire workers as independent contractors to avoid paying them benefits, which also denies them the right to workers’ compensation and unemployment. Those workers deserve protection, and as the wife of a union member (my husband has been a UBC member for 25 years), I fully support the right to organize and the need to protect workers from exploitation.

However, the ABC Test doesn’t distinguish between an exploited worker and a successful small business owner like me. Instead, it says that anyone who works in the same field as the company that hires them would have to be classified as an employee — which most of us do not want. In fact, according to the Bureau of Labor Statistics, 79% of independent contractors prefer their arrangement over a traditional job.

But the ABC Test would make it so that organizations wouldn’t be able to hire us without putting us on the payroll. So, they just wouldn’t hire us at all, which is exactly what happened when the ABC Test was implemented as part of California’s disastrous labor bill AB5.

Now, this federal labor law threatens the livelihood of some 59 million Americans like me who freelance by choice. It would essentially make freelancing illegal for photographers, graphic designers, real estate agents and appraisers, health care practitioners, owner-operator truck drivers, and virtually everyone who works in performing arts — musicians, conductors, actors, dancers, directors and even the organist at your local church.

Worse yet, the PRO Act is step one in President Joe Biden’s plan to make ABC the law of the land. Biden wants the ABC Test applied to federal labor, employment and tax law, essentially replicating on a national level the same law that forced thousands of independent contractors in California out of work.

Putting small business owners out of work would be a disaster both in West Virginia and across the country. And it couldn’t come at a worst time. Our economy has just started to recover after the pandemic. What’s more, this legislation runs counter to our state’s recently announced Ascend West Virginia program, designed to attract more remote workers to our state. The ABC Test in the PRO Act could cut that program off at the knees.

I was disappointed that Sen. Joe Manchin signed on as a co-sponsor of this bill. I can only assume he doesn’t understand the ramifications of the ABC Test and how it threatens the entrepreneurial spirit that has built America and West Virginia. I urge Sen. Manchin to work with his colleagues to replace the ABC Test with the current IRS test, which has been used successfully for years to determine worker status. It’s the right thing to do to protect the independence, freedom and entrepreneurship that’s a core part of our American culture.

Kara Gray is a freelance writer in the high-tech industry and a 17-year member of the Editorial Freelancers Association. She lives in Dallas, W.Va.

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