Something we have learned over the last few weeks of researching and writing about labor law is that it has the potential to majorly impact the make-up of the modern day workforce. The latest noteworthy piece of employment legislation in the United States has been the Protecting the Rights to Organize (PRO) Act of 2021. Passing through the House of Representatives in March, and still awaiting a vote in the Senate, there has been a thorough debate surrounding the passing of this bill, what it implies for the modern day workforce, and how it will impact employers, employees, and freelancers/contractors.
Among other things, the PRO Act aims primarily to “expand various labor protections related to employees' rights to organize and collectively bargain in the workplace.” Additionally, it “(1) revises the definitions of employee, supervisor, and employer to broaden the scope of individuals covered by the fair labor standards; (2) permits labor organizations to encourage participation of union members in strikes initiated by employees represented by a different labor organization (i.e., secondary strikes); and (3) prohibits employers from bringing claims against unions that conduct such secondary strikes.” The legislation also would operate to allow workers to coalesce no matter where they live because this would be federally enforced. (Click here for a complete summary)
This article provides insight into a variety of perspectives that speak in favor of and in opposition to the PRO act.
Advocates for the PRO Act say that this legislation gives employees the opportunity to level a playing field that has disproportionately favored upper management and large businesses. As such, this imbalance has created unnecessary difficulties for unions to make a meaningful impact on the employer/employee dynamic. AFL-CIO President Richard Trumka said during a recent interview with NPR that “The PRO Act would protect and empower workers to exercise our freedom to organize a bargain. It's a game changer. If you really want to correct inequality in this country — wages and wealth inequality, opportunity and inequality of power — passing the PRO Act is absolutely essential to doing that.” The importance of this act for its backers can’t be understated. In fact, according to POLITICO, union leaders have notified politicians that they will lose union support in upcoming elections if they do not band together behind the PRO act.
Other proponents say the aim of the PRO Act is to stop thwarting workers who seek union representation. The Economic Policy Institute suggests exactly that along with a variety of other reasons, asserting that this legislation serves as a counterbalance to a skewed power dynamic that favors employers over employees, such as:
- Employers can fire pro-union workers with no real consequences
- Employers interfere with the election process
- Lopsided communications controlled by employers means workers hear only anti-union messages
- Employers hire union-busters to push back on workers’ power
- Employers stall progress toward initial collective bargaining agreements
Like any piece of legislation, there has also been heavy scrutiny and arguments levied against the PRO Act. Those who oppose the act say that it will have profoundly negative consequences for small businesses, especially as they reel in from recently lifted COVID-19 restrictions. The ways in which the PRO Act aims to redefine legal classifications for employees and independent contractors, for example, are said to be notably problematic. In that regard, the PRO act states:
“… an individual performing any service shall be considered an employee[...]and not an independent contractor, unless:
(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
(B) the service is performed outside the usual course of the business of the employer; and
(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”
In response to these provisions, columnist, author, and small business owner Gene Marks pointed out that while provisions (A) and (C) are not problematic for small business owners, things get needlessly complex under provision (B). “Countless small businesses outsource certain revenue-generating services to independent contractors from time to time,” Marks stated. “My company, for example, uses outside contractors to do special programming projects for our software installations and then we bill out their time to our clients. Other businesses lean on specialists to do construction, repairs, writing, editing, consulting, deliveries and other services that are marked up and invoiced. Under the Pro Act’s wording, these services may force business owners to classify these people as employees and incur the additional costs of payroll taxes and benefits.”
Marks isn’t alone in his skepticism of the PRO act. Groups like The Associated General Contractors of America have vehemently opposed the legislation, stating that “The PRO Act poses a significant threat to the viability of the commercial construction industry, its long history of offering advancement and opportunity to all workers and its ability to rebuild our economy and revive our nation.”
So Who’s Right?
Both sides of the coin have their arguments hashed out, and in the infinitely complex world of employment legislation, nothing is as simple as it seems. Proponents of the PRO Act believe that passing this legislation will enable workers to more easily join a workers union without facing any intimidation or backlash for employers who, in their mind, already have the scales tipped in their favor. Opposition to the bill say that the reclassification of contractors who are in mutual agreements with their clients will be out of work and both sides will ultimately lose from the mutually beneficial exchange. So who’s right? The truth is, that’s for you to decide.