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Anybody in the U.S. worried about the ProAct?
Thread poster: Esther Pugh
Dan Lucas
Dan Lucas  Identity Verified
United Kingdom
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Member (2014)
Japanese to English
Starting to get momentum Mar 4, 2021

David Higbee wrote:
This is dangerous for our profession. Look at the ABC test. Interpreters will no longer be able to work with agencies unless we are EMPLOYEES. No thank you. The same thing happened in California with AB5. This is absolutely not positive for our profession in any way.


As pointed out by the authors of this article, the "B" condition of the "ABC" test is hard for many freelancers to meet, including those working in the translation industry.

But there's a lot of political force behind this - the unions, for example, as discussed here. Quote: '"The PRO Act is our litmus test," Trumka said. "It has to get done."'

Oh well. This initiative was floated in 2019, passed the House in early 2020 with the support of leading Democrats, including Biden and Harris, but then it fell in the Senate. Since then there's been an election, and the country elected Biden. So the resurrection of this bill shouldn't come as a surprise to anybody.

From what I can make out, the provisions that affect freelancers are basically a sideshow for organised labour, which seems to be focused on right-to-work and related legislation. With that in mind, even if the PRO Act does become law, hopefully some of the AB5 exemptions belatedly added in California will be included right from the start and mitigate the damage to people like us.

Dan


 
Esther Pugh
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TOPIC STARTER
Agreed! Mar 4, 2021

Dan Lucas wrote:
As pointed out by the authors of this article, the "B" condition of the "ABC" test is hard for many freelancers to meet, including those working in the translation industry.

But there's a lot of political force behind this - the unions, for example, as discussed here. Quote: '"The PRO Act is our litmus test," Trumka said. "It has to get done."'

Oh well. This initiative was floated in 2019, passed the House in early 2020 with the support of leading Democrats, including Biden and Harris, but then it fell in the Senate. Since then there's been an election, and the country elected Biden. So the resurrection of this bill shouldn't come as a surprise to anybody.

From what I can make out, the provisions that affect freelancers are basically a sideshow for organised labour, which seems to be focused on right-to-work and related legislation. With that in mind, even if the PRO Act does become law, hopefully some of the AB5 exemptions belatedly added in California will be included right from the start and mitigate the damage to people like us.

Dan


You’re right, and it’s a mystery to me how this has escaped so many T&I pros for such a long time.

[Edited at 2021-03-04 21:17 GMT]

[Edited at 2021-03-04 22:40 GMT]


 
Esther Hermida
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Tell that the to Authors of the CA Bill - The PRoAct is the same, but worse Mar 4, 2021

philgoddard wrote:

As I understand it, they want to stop companies like Uber and Lyft from pretending that their employees are independent contractors.


Why did the state of California had to specifically exempt translators and interpreters on the AB2257? Because we fought like hell to be exempted because we are NOT misclassified workers. If it weren't for the hard work of some individuals we would be worrying about being employees of the many agencies we work for without the benefits of being self-employed.

Been there done that. The legislators recognized us as professionals under certain conditions. For those people that say that if you're a S-Corp or an LLC you won't be affected, please read the Dynamex Case (the reason why AB5 exist) and how the Supreme Court dismissed the notion that a corporation will save you. Wrong.

The ProAct is meant to protect workers, why then are so many other freelancers and ICs (out of the T & I profession) worried about it? Because it doesn't provide the same exemption that California did.

We're doing something about it. You should too.


Esther Pugh
Dan Lucas
Ildiko Santana
 
jyuan_us
jyuan_us  Identity Verified
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The B test Mar 4, 2021

The B prong means you can remain to be a freelance translator if you only provide translation services to those that don't need translation services at all, and it will be against the law for you to provide services to the clients that do need your services.

 
Ildiko Santana
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MODERATOR
not a stupid question at all - a horrific outcome is looming Mar 6, 2021

Liviu-Lee Roth wrote:

Like many other freelance colleagues translators and interpreters I work mostly through agencies. In my particular field, in order to get a project, one needs to have clearance from the US. Government and one of the main requirements is to be a US. citizen and be in the US while working on the project. How can the ProAct impact us? The agencies cannot get linguists from abroad.

Thank you,
Lee


Dear Lee,

Nothing wrong with your question! You just pointed out one of the many destructive consequences of the cruel and clueless law AB5, and its national version the PROact. This goes beyond language services providers losing their livelihoods and income - those needing and benefiting from our services are about to be left without access to materials in their language in hundreds of industries! The backlash against this travesty of a law has been huge and loud for over a year now but, sadly, the outlook is grim.

Thank you for raising a very valid question.
Best regards,
Ildikó


Esther Pugh
Oleksandr Ivanov
 
jyuan_us
jyuan_us  Identity Verified
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A question Mar 7, 2021

Will PROact prohibit companies to hire people working remotely for them on a full time, permanent basis?

 
jyuan_us
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Do they need 50 or 60 votes to pass it at the senate? Mar 7, 2021

If 60 votes are needed, what is the reason for us to worry about it?

 
Oleksandr Ivanov
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Other countries copycatting—I wonder if this is a coordinated effort or just mental contagion? Mar 7, 2021

Unfortunately, lawmakers in my country (Ukraine) are willing to copycat this move, and are already considering a proposed bill that will simplify recategorizing freelance workers as employees for tax and social contribution purposes. Here, we have no organized labor to speak of, but the taxman is really interested in treating freelance translators or software developers as employees rather as independent contractors.

Thanks a lot for the links providing arguments and describing meas
... See more
Unfortunately, lawmakers in my country (Ukraine) are willing to copycat this move, and are already considering a proposed bill that will simplify recategorizing freelance workers as employees for tax and social contribution purposes. Here, we have no organized labor to speak of, but the taxman is really interested in treating freelance translators or software developers as employees rather as independent contractors.

Thanks a lot for the links providing arguments and describing measures you've taken against this step in California and are taking at the federal level!
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Dan Lucas
Dan Lucas  Identity Verified
United Kingdom
Local time: 17:47
Member (2014)
Japanese to English
Complicated Mar 7, 2021

jyuan_us wrote:
If 60 votes are needed, what is the reason for us to worry about it?

I'm not American, but think you're referring to the use of the cloture rule to end filibusters, right? That second article I linked to above largely concerns consideration among Democrats on how to avoid the filibuster. This article from last year discusses use of the so-called "nuclear option", by which a new precedent is set, a rule can be circumvented or reinterpreted, and a filibuster broken. Here's the money quote:

"In sum, by following the right steps in a particular parliamentary circumstance, a simple majority of senators can establish a new interpretation of a Senate rule."

Guess it really depends how much the Democrats want this. If they can get the vote to 50-50 (assuming the two independents, Bernie Sanders and Angus King, side with the Democrats), then Kamala Harris has the tie-breaker. Boom.

Dan


 
Liviu-Lee Roth
Liviu-Lee Roth
United States
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Who can define "essential terms and conditions"? Mar 7, 2021

"Two or more persons shall be employers with respect to an employee if each such person codetermines or shares control over the employee’s essential terms and conditions of employment. In determining whether such control exists, the Board or a court of competent jurisdiction shall consider as relevant direct control and indirect control over such terms and conditions, reserved authority to control such terms and conditions, and control over such terms and conditions exercised by a person in fa... See more
"Two or more persons shall be employers with respect to an employee if each such person codetermines or shares control over the employee’s essential terms and conditions of employment. In determining whether such control exists, the Board or a court of competent jurisdiction shall consider as relevant direct control and indirect control over such terms and conditions, reserved authority to control such terms and conditions, and control over such terms and conditions exercised by a person in fact: Provided, That nothing herein precludes a finding that indirect or reserved control standing alone can be sufficient given specific facts and circumstances.”.


This is part of the H.R.842.
Where can we find an explanation of what the law considers "essential terms and conditions of employment"?
An answer to this question is essential, in my view. The agency determines the rate, in agreement with the T&I, offers a project which the freelance T&I can decline, if accepted, gives T&I a deadline.

Now let’s take a look at some of the essential elements of an employment contract:

Names and address of all parties involved - check
Description of business - check
Clearly defined job position and role - check
Company specific requirements and/or protections -check
Length of job and duration of schedule/work hours - NOPE
Pay, compensation, & benefits - check
Employee classification category - NOPE
Privacy policies - check
Performance requirements - check
Tasks & duties - check
Terms of relationship - NOPE
Termination guidelines - NOPE
Signatures and dates - check

Any ideas?
Lee

[Edited at 2021-03-07 15:11 GMT]
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Esther Pugh
Esther Pugh  Identity Verified
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Pro Act just passed the House Mar 10, 2021

The Pro Act aka HB 842 just passed the House, a few minutes ago, with the ABC test baked right into it. The IRS test should be used to determine independent contractor status, and the ABC test should be cut out, as it would destroy the livelihood of thousands of freelancers, T&I included, who do not want to be employees. Next up: Senate vote. To all concerned and affected —> call your senators!

Dan Lucas
 
Abba Storgen (X)
Abba Storgen (X)
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Local time: 12:47
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Without a specific excemption, translators/interpreters in the US will be out of business Mar 10, 2021

...and if you check out the similar law that's already applied in Illinois, incorporating into an LLC or C-corp won't work either.
Unless it's a multi-person corporation that can "legitimately" be a business, and not just a pass-through vehicle.
*The ABC test is from the 1930s, and they're trying to apply it to today's society.*
They don't even know what's going on today in the market.
For Californian translators it was a total disaster.
Of course the multiple pri
... See more
...and if you check out the similar law that's already applied in Illinois, incorporating into an LLC or C-corp won't work either.
Unless it's a multi-person corporation that can "legitimately" be a business, and not just a pass-through vehicle.
*The ABC test is from the 1930s, and they're trying to apply it to today's society.*
They don't even know what's going on today in the market.
For Californian translators it was a total disaster.
Of course the multiple private companies that pose as "translators' associations" are doing nothing so far from what I know, except that they increase their annual subscriptions (lol).
If you're a US translator and have seen a sudden drop in business lately from agencies, that's one of the reasons. Agencies are teaming up with professionals out of the country to prepare themselves in case the ACT law passes.
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Abba Storgen (X)
Abba Storgen (X)
United States
Local time: 12:47
Greek to English
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You won't find answers here Mar 10, 2021

Esther Pugh wrote:

The PRO Act, HR 2474, aka Protecting the Right to Organize Act of 2019, passed the House on 02/06/2020 – died in the Senate due to GOP majority (but things have changed; we now have a completely blue Congress)

This bill was a copycat based on AB5 in CA, which cost many of our Cali colleagues their contracts, income, and work assignments. The national version could cost all of us our US contracts, if re-introduced. Biden is a strong supporter of the unions (see latest DOL nomination), and if this law goes national, US freelance translators better watch out (and look for European clients!).

Thoughts?


You won't find answers here; in these forums people just like to play with words. The reality is that if it passes, even if someone places a little exemption in it, agencies won't take the risk of sending you work anymore, when they already have an endless basis of freelancers abroad with zero risk in hiring them online.
At some point we have to admit that the US citizenship has become a liability for us.


 
Sadek_A
Sadek_A  Identity Verified
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Steering conversation into one, single direction ain't nice. Mar 10, 2021

I hope this reply won't get blocked like my last one to Dan.

Eleftherios Kritikakis wrote:
Agencies are teaming up with professionals out of the country to prepare themselves in case the ACT law passes.
agencies won't take the risk of sending you work anymore, when they already have an endless basis of freelancers abroad with zero risk in hiring them online.

Let's consider a few facts:
1- Even before this Pro Act, US agencies can/could -and were/are- hir(e)/(ing) T&Is from abroad, but just for the projects that allow so.
2- For projects that do NOT allow so (as in governmental projects, for instance), US agencies can NOT hire T&Is from abroad.
3- Legislature won't be blind to the possibility that US agencies might exclusively award T&Is from abroad all the projects that allow so, and will surely set regulations to counter that.
4- "59 million Americans freelancing, equivalent to 36% of the country's entire workforce" (https://financesonline.com/number-of-freelancers-in-the-us/) is just a catastrophic statistic when taking into account the uncertainty of livelihood delivered by the current freelancing model. Those are a whole lot of households living in chanciness!
5- The proliferation of kiosk-sized T&I enterprises needs to be stopped. They are causing harm and scams. If they don't have enough work to hire full-time T&Is, then they should leave the stage for those who have. And, they themselves can then get hired as full-timers instead of owners of miniature businesses.
6- The Pro Act is NOT forcing the employer nor the employee to maintain a typical 9-to-5 working hours scheme. No. It is simply forcing US agencies to grant their T&Is some of the fortune those T&Is generated for them, in the form of much-needed employment benefits!
7- The Pro Act can serve as a lead for the rest of countries wishing to support their national freelance workforce with well-deserved employment benefits, and to cut down greed by enterprises.
8- Lastly, not all T&Is from abroad are sellouts lining up to do the T&I of Americans for peanuts! Many of those T&Is from abroad are, themselves, after better employment terms, and do NOT accept crumbs.


Liviu-Lee Roth
Christopher Schröder
 
jyuan_us
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If that is a legitimate solution Mar 10, 2021

Eleftherios Kritikakis wrote:
Unless it's a multi-person corporation that can "legitimately" be a business, and not just a pass-through vehicle.


It shouldn't be very hard for you to add another shareholder to your C- or S- Corp.

[Edited at 2021-03-10 11:25 GMT]


 
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Anybody in the U.S. worried about the ProAct?







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