All workers should have wage and hour protections

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.