One of the top priorities for the labor unions that overwhelmingly supported Joe Biden for President is enactment of the Protecting the Right to Organize Act (PRO Act).   The legislation would adopt many of the provisions of California’s “ABC test” under Assembly Bill 5 (AB 5), which was enacted in 2019, with additional provisions that would strengthen labor unions.  AB 5 changed a longstanding method of determining whether a worker is an employee or a contractor, making it much more difficult for workers to maintain independence and choice in their work.  

The main target of AB 5 was app-based workers for companies like Instacart, Lyft, and Uber.  Many professions were exempt, including accountants, architects, and attorneys, while others, like freelance writers, were caught up in the law.  The California legislature subsequently agreed to exempt other industries from AB 5, and voters approved a 2020 ballot measure that exempts app-based delivery and transportation services.  Complete repeal of AB 5 has been rejected, including an effort by Assemblyman Kevin Kiley (R-Rocklin), who tried to amend the economic stimulus package with a measure to repeal AB 5 for everyone other than app-based workers on August 24, 2020.  AB 5 did not work in California, and it will not work on a national level. 

Nonetheless, on March 9, 2021, the House of Representatives passed H.R. 842, the PRO Act, by a vote of 225 to 206.  During the floor debate, Rep. Virginia Foxx (R-N.C.) stated that the PRO Act would “harm the economy and the American worker and do a great injustice to employers who risk their capital every day to create jobs.”  She also held a press conference that included Monica Lyman, a weddings and events florist whose job was impacted by AB 5 in California, who said, “I can no longer take those jobs without knowing if I could hire other freelancers and workers.”

The PRO Act not only expands the definition of employee, employer, but it also overturns right-to-work laws in 27 states that allow employees to choose for themselves whether to join a union.  Workers in those states would be forced to join a union and pay millions of dollars in union dues from their paychecks, even if those workers do not support a union’s political advocacy or wish to be represented by a union.  This provision also wipes out the Supreme Court’s Janus v. AFSCME decision, which held that workers cannot be forced to pay union dues if they do not join the union.  This provision alone would have a significant impact on the continued economic recovery from the pandemic, since seven of the top 10 states that have experienced the highest rates of economic growth are right-to-work states.

The PRO Act would also have a dangerous impact on personal privacy by requiring employers to share their employees’ personal information, including home addresses, personal emails, and phone numbers with union organizers without the consent of the employee.  Workers and their families would be exposed to legalized intimidation and harassment.

On July 22, 2021, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a hearing entitled, “The Right to Organize: Empowering American Workers in a 21st Century Economy.”  Ellis Hospitality Principal & Managing Partner Jyoti Sarolia testified that the PRO Act, “is the most anti-small business bill in the history of Congress.  With a stroke of a pen upon enactment the PRO Act’s joint employer and independent contractor provisions alone would steal the American dream of business ownership from countless entrepreneurs.” 

Sen. Mike Braun (R-Ind.), who owned a business prior to his election to Congress, stated, “Don’t kill the golden goose that has made jobs for union workers possible, small business.”  He noted that while the bill is unlikely to pass as it is opposed by some Democrats, President Biden could still sign an executive order mandating a preference for unionized labor for government contracts, grants, and loans.

Sen. Tommy Tuberville (R-Ala.) made it clear that he believes it is important for workers to choose whether to join a union since, “this is a free country.”

But President Biden has urged “Congress to send the PRO Act to my desk so we can seize the opportunity to build a future that reflects working people’s courage and ambition and offers not only good jobs with a real choice to join a union.”

HELP Committee Chairwoman Patty Murray (D-Wash.) and several other Democratic Committee members noted that the pandemic has impacted workers’ lives and those businesses have denied them their rights.  However, the PRO Act is instead, as Sen. Braun said, “really the ANTI Act: anti-privacy, anti-small business, and anti-worker.”

If the PRO Act is enacted into law, new restrictions on the gig economy and independent contractors, and forcing many current non-union workers to unionize, will do more harm than good.  Passage of the PRO Act will eliminate the freedom of choice for workers who want to be their own boss.  During the coronavirus pandemic, individuals, families, and businesses have been struggling to make ends meet.  If the PRO Act becomes federal law, it will prolong their suffering.