Freelancers Can’t Organize? Blame FDR
Staffers aren’t the only ones with stakes in labor policy. But thanks to New Deal labor laws, only they can bargain collectively.
By Luke Winkie
It’s my own personal albatross. Every time news of an upstart digital media union trickles through the timeline, I can’t help but wonder how, or if, it will affect me and my fellow freelancers. It’s difficult not to fantasize about the bargaining meetings that take place at the disparate enterprises that send us our checks. Is it possible that, this time, just maybe, the salaried gentry will think to raise questions that affect us lowly contract workers. Questions such as, “Why are we still commissioning 1,500-word articles for $150?”
This is the paradox of the media union era. It is plainly crucial and long-overdue that journalists are taking labor fights to management. But, as anyone can see, media companies have responded by leaning more heavily on non-salaried writers to cut costs. The draconian calculus behind this trend is no secret: Healthcare and office space is expensive; an army of staff-writers-in-anything-but-name, on the other hand, is not. As I write this, The Outline has just announced it will cut weight in order to embrace what Recode describes as a “freelance model.”
Perhaps the most important part of this equation is that freelancers can’t bargain. The new collective action in journalism is reserved for people who go to work at the office every day and receive benefits.
The reasons for this are complex, but they begin with, of all things, FDR’s New Deal labor reforms. Specifically, the National Labor Relations Act, signed into law by President Roosevelt in 1935. The law widened and protected the parameters allowing employees to organize, but excluded certain workforces, including independent contractors, from those rights. Some say the specifics of those exclusions are racist in nature, and were aimed at migrant workers of color who have been consistently classified as “independent contractors” for most of American history. By the letter of the same law, freelancers couldn’t organize because freelancers are legally synonymous with small businesses, and a network of small businesses banding together to set their own prices is the definition of “price-fixing.”
It is disorienting that the law equates an economy warping conspiracy between, say, the major automakers, with freelance journalists demanding a blanket price-per-word minimum, but that is where we find ourselves, thanks in large part to the legacy of the NLRA.
“Workers who are classified as independent contractors have been historically prevented from forming legally-recognized unions,” says Cal C, a member of the Industrial Workers of the World who was on the ground floor of the upstart Freelance Journalists Union. “The problem here for those of us who are freelance journalists is that media companies are increasingly outsourcing their reporting to freelancers, who are classified by the NLRA as independent contractors. Theoretically, bosses of media companies like Vox, Vice, or BuzzFeed, all of which use freelancers for a good portion of their news coverage, could appeal to the DOJ or FTC to sue freelancers in an attempt to bust any unionization efforts.”
This a reality that freelance journalists have come to accept, without thinking too much about it. According to Charles Glasser, a law professor and the former Global Media Counsel for Bloomberg News, many independent contractors don’t fully understand the risk of operating as a journalist without the backing of a strong company or union. Today, much of his time is spent representing independent reporters, pro bono, who’ve been targeted by a libel lawsuit and have been abandoned by the publication that commissioned the piece.
“When the big shift happened from print to digital, what got lost in that transfer was the sense of loyalty and obligation that publishers traditionally had for people who worked for them — freelance or not,” says Glasser. “To their credit, there are some publications who say, ‘While we’re not legally obligated to, we will protect our freelancer.’ When freelancers accept an assignment, they need to ask, ‘Okay, if I get sued, will you cover me?’”
The stakes have never been higher, but the path forward is convoluted. I’ve been to several “freelancer solidarity” events around New York City. While I’ve found plenty of empathy and commiseration among my fellow media employees, these are not matched by much tangible, nuts-and-bolts progress on freelance labor organization. Instead, the methods that Cal C and the IWW Freelance Journalists Union have employed are more guerilla in nature. Recently, after the leak of a portion of the Vox freelance contract that asked its contractors not to discuss rates with each other, Vox freelancers launched a viral Twitter thread, in which contributors from all over the world aired exactly how much they were paid. While it is difficult to bring Twitter grievances to a bargaining table, the IWW believes you can’t build a movement without such displays of solidarity.
“The IWW tends to look at legislation at the ballot box with a skeptical eye,” says Cal. “Even local ordinances that are voted in via referendum can, and often are, curtailed or rolled back entirely, especially if they pose a threat to the economic interests that govern that particularly city, county, or state. As a union, we tend to think that direct, collective action at our workplaces, in our industries, and in our communities, can lead to more lasting social change, as opposed to organizing around a specific legislative reform.”
**
There has been some headway made in recent months and years, albeit in the form of publication-unique olive branches. For instance, in Future’s original charter letter for the union they founded earlier this year (now strangely missing from the internet) one of their demands was to expedite the accounts-payable structure for non-salaried contributors. Similarly, Vox Media recently terminated a controversial “morality clause” in their new freelance contract, which stated that the company could cut ties with any worker who violated a vague set of ethics. These moves, while welcome, represent the unfortunate reality that the working conditions of freelancers hinge on the generosity of the staff behind the scenes. Call it third-party solidarity.
Nobody can blame a media union for focusing on the people it is chartered to serve. Philip Montoro, music editor of the Chicago Reader and a member of its union, also stresses that when staffers negotiate, they are ultimately protecting the institution that freelancers depend on for any kind of work at all. “No Reader would’ve meant no Reader freelancers,” he said, referring to his union’s recent negotiations. “We needed to push back against management neglect and hostility in order to save the publication. That was more urgent than all other concerns. It’s not that we didn’t think about freelancers. It’s that we didn’t see any practical way to involve them in the unionization process.”
Montoro tells me that language in the Reader’s current collective-bargaining agreement does address unsalaried labor, but through a lens that specifically aims to protect existing Reader employees. “Management is forbidden from eliminating staff positions and farming that work out to freelancers,” he explains. Montoro says he wants to increase the company’s freelance budget, and he’s brought up those concerns with management. But he concludes that the “union has no lever to pull to make that happen.”
Still, Montoro tries to keep an open dialogue with his freelancers. He regularly hosts a “freelancer open house,” where concerns and ideas are traded back and forth. That rapport has resulted in several edits to the Reader’s freelance contract. “These days, when the company’s lawyers commit some gross overreach [with freelance contracts], it’s pretty easy to walk it back,” he explains. “The union definitely watches out for that sort of thing. It’s one of the few areas where we can explicitly, directly work on behalf of freelancers.”
Tatiana Walk-Morris, a journalist who covers the tribulations of independent contractors on her blog, “The Freelance Beat,” is willing to go one step further. “I can tell you that there’s a sentiment among staff workers that freelancers are taking their jobs,” she says. That discord can sew a lack of cohesion among labor that is counterproductive. “In my view, freelancers and staffers should be working together. During staff contract negotiations, there should be clauses added to the contract that prevent media companies from using freelancers as cheap labor,” she continues. “To me, our goal is the same, to make sure that workers have ideal conditions regardless of whether they are staff or freelance.”
It is perhaps too much to expect unions to use their full powers to improve conditions for unsalaried workers who are not members. It is difficult to imagine any office going on strike for a better freelance budget. Real change needs to come from an organizational base among contract employees, which is a challenge that Walk-Morris is currently sizing up.
“It can feel like a David and Goliath scenario when negotiating wages or other contract clauses,” she said. “Freelancers are not in the same space. Unlike staff workers, we are not only scattered in terms of workplace, we are disparate in terms of our ability to make a living. Some freelancers are thriving; others are struggling to get by. In order to make things more equitable for all freelancers, regardless of race, class, gender, [we] have to get together to make sure that we can save for retirement, gain access to healthcare, and live well.”
Getting there will mean reckoning with the Depression-era labor and antitrust laws that are some of the most prominent barriers to freelance organizing and equity. Those anachronistic laws are monuments to how the industry, and the world, has changed. Sole proprietors are not “businesses” so much as struggling “contract employees” lunging between 45- and 90-day pay cycles. Our labor laws must address today’s realities before it’s too late, because the patronage of editorial staffs will only get us so far. It may be ambitious to envision a comprehensive bargaining table for non-employee media workers, but it’s the only choice we have.
Luke Winkie is a writer and former pizza maker from San Diego, currently living in Brooklyn. He contributes to Vice, Rolling Stone, Playboy, Vox, and Gizmodo, among others. Find him on Twitter @luke_winkie
Production DetailsV. 1.0.1
Last edited: July 19, 2019
Author: Luke Winkie
Editor: Alexander Zaitchik
Artwork: The Freelancers Union
