The House of Representatives passed legislation late Tuesday to significantly limit individual workers’ rights. That is, granted, not how the Protecting the Right to Organize Act’s supporters would characterize the legislation, which passed the House by a vote of 225 – 206. But that is what the main provisions of the law in fact do: limit the rights of people to decide how and when they work and forcing them to give up additional rights when they do.
Virginia Congressman Bobby Scott, the PRO Act’s author, said it would provide, “new tools to protect workers from intimidation and retaliation, introducing meaningful penalties for companies that violate workers’ rights, and allowing workers to hold free, fair, and safe union elections.” Note the absence of anything saying that it expands worker rights.
At best, the backers of the PRO Act can claim that they are doing this for the workers’ own good. The limits on their freedoms are expansions of the rights of unions, which are, in theory, the workers’ collective voice. But most of the provisions of the law do not address situations where workers have attempted to form a union and are facing resistance from the company. Rather, they focus on situations where individual workers are reluctant or opposed to joining a union and effectively give those workers no choice.
The PRO Act’s most far-reaching change would eliminate right to work laws, which 27 states currently have, some going as far back as the 1940s. These laws stipulate that workers cannot be forced to join or otherwise financially support a union. Specifically, right to work laws prohibit union-management contracts that include so-called “security clauses,” which require that management fire any worker who does not at contribute to the union. Usually, these provisions require the employer to make automatic deductions and route them to the union. It is not uncommon for workers to not know that they have joined a union when they a take on a job. Rolling back right to work laws could allow this to happen to workers across the country.
Critics of right to work laws claim that they create a free-rider problem for unions, since collective bargaining benefits go to non-members. But a unios can just as easily act as a free rider on the backs workers if it is not doing an effective job representing them. For example, senior leaders of the United Auto Workers were caught selling out their members. In any event, if workers wanted to be members of unions as much as the PRO Act’s fans claim, then why is this even necessary? Attempting to reverse right to work laws is a tacit admission that many workers are not interested in supporting unions.
Another major provision of the PRO Act is an attempt to enact a nationwide version of California’s AB5 law, to limit the ability of employers to designate workers as contractors. Most so-called “gig economy” businesses, such as rideshare services Uber and Lyft, claim that the flexibility inherent to contract work is essential, since most workers only opt to do it for limited periods. Critics, especially unions, call it a dodge to get out of complying with state and federal workplace regulations like overtime and minimum wage rules, which only apply to traditional employees. They want the companies to be forced to treat the workers like employees. The PRO Act does that by saying companies can only declare workers to be contractors if “the service is performed outside the usual course of the business of the employer.” In other words, anybody who delivers for a delivery service is to be considered an employee.
In practical terms, the PRO Act would require employers to control their workers’ schedules because overtime and other federal rules are tied to the employee’s hours at work. Drivers for companies like Uber and Lyft—a majority of whom do not drive full-time—would no longer be allowed to work as much or as little as they want. The companies would retain only people who work 40 or more hours per week, because the companies would no longer be able to justify the expense of retaining part-time drivers as employees. Workers who have relied on that or other similar short-term gig-economy jobs to round out the bills when necessary would find that option closed off for them.
California’s AB5 did serious harm to the livelihoods of people who used gig economy jobs in this way, as well as to more traditional freelancers like musicians, journalists, and translators because it is difficult to write the law in a way that does not try to force employers to treat them as employees too. Californians repealed the main provision of AB5 by passing ballot Proposition 22 by a resounding margin last year. Yet now Congress want to do the same thing to the entire country.
The PRO Act requires employers to give all workers’ phone and email contact information to unions attempting to organize a workplace. Workers have no say in this. Under the act, if a worker were to go to her employer and say, “Don’t give my numbers or addresses out to anyone,” it would be illegal for the employer to comply.
Finally, the legislation does not guarantee workers the right to decide on whether to hold a vote on union representation. Under current law, National Labor Relations Board (NLRB), an independent federal agency, will automatically hold a secret ballot election only if an employer contests a union’s claim to represent employees. The PRO Act adds the caveat that if the union loses the vote but the board determines the company interfered in any way, then the union is automatically certified as the winner, even if there is no reason to believe the alleged inference changed the outcome of the vote.
There are other questionable provisions of the PRO Act, but these are the worst. Lawmakers cannot say they support this legislation and simultaneously say they support individual rights.