PRO Act bolsters unions, but critics say it’s a ‘job killer’

REGION — A broad and controversial labor law is set for a showdown in Congress this week.

The Protecting the Right to Organize (PRO) Act (H.R. 2474) came to the floor on March 9 as union leaders and Democrats have united to pass the sweeping legislation and amend the National Labor Relations Act.

Congressman Mike Levin (CA-49), one of 218 Democratic co-sponsors of the bill, said he supports the PRO Act as it will strengthen the ability for workers to organize into unions, eliminate right-to-work laws, codify the ABC Test used in California via Assembly Bill 5 and more.

The bill passed the U.S. House of Representatives on Tuesday, but the U.S. Senate is another obstacle, according to experts following the bill.

However, there has been considerable blowback against the legislation from independent contractors, construction trade associations and retail associations who worry the bill will destroy freelancing, strip employers of their rights and put millions out of work.

Regarding the ABC Test, a controversial employment standard established in 1937, Levin stressed several times the test will only be used in the PRO Act to help workers organize and collectively bargain.

“I think it’s important to fight like crazy to get this to the president’s desk,” Levin told The Coast News. “The federal bill is basic, and the ABC Test is for a singular purpose and not to impact a particular industry or undermine the gig economy.”

The ABC Test has three prongs to determine independent status: 1) the worker is free from control and direction in connection with their performance of service; 2) the service provided is performed outside the usual course of business of the employer; 3) 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.

Critics of the PRO Act link the ABC Test to California’s gig worker law, which negatively impacted at least one million independent contracts, according to a February 2020 report from the California Legislative Analyst’s Office.

Rep. Darrell Issa (CA-50) issued a statement in opposition to the PRO Act, comparing the legislation to a federal version of California’s controversial law.

“Even worse, the PRO Act will bring to every state California’s AB 5, which destroyed numerous jobs by denying work to independent contractors. To take a reckless job killer like AB 5 and extend it across America is to make one state’s mistake the entire nation’s crisis.”

But Levin argued the test within the PRO Act is to determine whether workers are employees for the purpose of union organizing and collective bargaining. He said the federal version of the ABC Test is much different in its application than what California has done.

President Joseph R. Biden has said the ABC Test will be the basis for all federal labor, employment and tax law.

Tom Conway, the international president of the United Steelworkers Union, wrote in Salon the PRO Act will also prevent companies from interfering with union drives.

Also, Levin said the PRO Act is a step forward in the fight to protect workers, deliver higher wages, addresses misclassification, push back against anti-worker policies, penalizes companies exploiting their employees and restores fairness to workplace policies.

He said the PRO Act is a way for the party to stand up for the middle class and low-wage workers, noting Congress failed to pass a federal $15 minimum wage law recently, which would’ve helped those individuals.

According to Levin, unions have high support, citing a Gallup poll of 64% of Americans support unions and another poll showing 48% of non-union workers would seek to organize.

“I think the bottom basic issue is too many people in this country are working too hard for too little to show for it,” Levin said. “Our economy should reward hard work. When workers have the power to stand together and organize they have higher wages, better benefits and safer working conditions. That’s all this legislation is designed to do.”

For Joe Naiman, a freelance writer based in San Diego County, the PRO Act is just another AB 5, but on a national scale. The chaos and uncertainty of AB 5 led him to lose clients and other opportunities.

Naiman called the PRO Act a “terrible law” and said if enacted will force companies and workers to move out of the country. Naiman said it would also create a barrier of entry for young people just starting in their careers.  Naiman also believes the ABC Test would create numerous issues for hiring contractors similar to AB 5 impact in California, where many companies canceled contracts instead of hiring their contractors.

“There are so many problems with the ABC,” Naiman said. “The Borello Test is fine. The IRS has no problem with me and the California Franchise Tax Board has no problem with me.”

Other studies show the popularity of independent contracting has increased, even during the COVID-19 pandemic. Upwork, an online platform for freelancers, conducted a report showing a growth of more than 20% in freelancing in 2020, while independent contractors earned $1.2 trillion in wages.

The pandemic, freelancers have argued, provides freedom and flexibility from an employer.

Others standing against the PRO Act include the Associated General Contractors of America, Associated Builders and Contractors, National Retail Federation, Retail Industry Leaders Association and a number of minority chambers of commerce. Several women’s associations oppose the bill as well.

The National Law Review reviewed the PRO Act and found it would also overturn three U.S. Supreme Court rulings; prohibit mandatory arbitration agreements in employment contracts; codify union “ambush” election rules; institute a “stealth” card check (allows unions to challenge election results and get certified automatically in certain circumstances); introduce new civil penalties for labor law violations, including personal liability; authorize secondary boycotts (allows unions to target any company through picketing and protests, even those unrelated to a labor dispute); and banning employers from permanently replacing strikers.

The bill would also allow for unions to have access to an employee’s personal information.

“Certain freelancers, especially those who have specialized talents and skills, need to be independent in order to earn a living, mainly because they work with a large number of clients on short projects,” said Madeline Rios, a freelance translator and interpreter from Claremont. “It is possible to create legislation that recognizes both realities if everyone gets off of their ideological horses and starts to care about the welfare of real people.”