The PRO Act Would Erode Individual Workers’ Rights

Suppose a piece of legislation was presented as an expansion of rights, when in fact it narrowed those rights. That ought to stir up some controversy. Thus far, however, this fact regarding the Protecting the Right to Organize (PRO) Act has attracted little attention.

The misdirection is right in the name. The right to organize has existed since the National Labor Relations Act was passed in 1935. House Education and Labor Chairman Bobby Scott, author of the House version, nevertheless said the PRO Act will protect against the “decades-long assault on workers’ rights—led by special interests in state legislatures, courts, and employers across the country.” His Senate cosponsor, Sen. Patty Murray said it would “restore workers’ ability to join together to demand their fair share of the economic growth they drive.”

In reality, the PRO Act, which is currently awaiting action in the Senate, mainly involves new constraints on businesses vis-a-vis unions and limits on the rights of individual workers. What the PRO Act is really about is bolstering organized labor’s membership, which has been shrinking as a percentage of the workforce for decades. It seeks to reverse this by giving unions—legal entities that exist independent of individual workers—more power to force those individual workers to fall in line.

The PRO Act would abolish all state right to work laws. These laws restrict the type of contracts that businesses can sign with unions. Typically, unions insist on what are called “safety clauses”—requirements that the business fire any worker who refuses to join the union or at least pay it a regular fee in lieu of dues. Usually the fees are deducted directly from the worker’s paycheck and routed to the union. In right to work states, these provisions are illegal. Right to work laws don’t prevent a worker from joining a union. They just ensure that is the worker’s own choice. The PRO Act would strip workers in 27 states of that right.

In addition, the legislation would make working side hustles harder. Currently, contractors—the legal term for freelancers—are considered to be independent businesses and therefore are generally not subject to federal laws covering workplace matters like overtime, the minimum wage, or health insurance. Instead, contractors typically negotiate their own wages and hours with the business to which they offer their services. This affords a great deal of freedom on those agreements and also allows contract work to be done quickly and with a minimum of red tape. The PRO Act would limit contract work to jobs “performed outside the usual course of the business of the employer” and to cases in which the worker is “customarily engaged in an independently established trade, occupation [or] profession.” In other words, businesses could only hire contractors for jobs outside of their central operations, while workers could only do freelance work for their main means of earning a living. In all other cases, the workers have to be traditional employees. That means being bound to the employer, which would determine when and how they worked.

The PRO Act would limit worker privacy by forcing employers to give away employees’ “personal landline and mobile telephone numbers, and work and personal email addresses” to unions mounting an organizing bid. The workers would have no say in this. If they were to ask their employer not to give this information away, the employer would be legally obligated to reject the request. Why is this necessary in the social media age? Workers that want to join or just learn about a union could go online to do so. Providing the contact information merely ensures that workers who would prefer to be left alone could not.

At best, the PRO Act’s provisions are “for your own good” measures built on the theory that a strong union would benefit workers. But shouldn’t it be the worker’s own choice to decide if they want to support one?

See my new paper on the PRO Act here.