Vice President, Labor Policy
March 10, 2021
The U.S. House of Representatives on March 9 passed H.R. 842, better known as the Protecting the Right to Organize (PRO) Act, for the second year in a row. With a significantly narrower House majority than last year, it remained somewhat of an open question as to whether Democrats had enough votes to pass it again, but in the end the bill unfortunately survived by a vote of 225-206. Should it become law, it will fundamentally alter labor relations, and workers and businesses will suffer its ill effects for years to come.
On this go-around, several lawmakers apparently tried to seek refuge from their vote in favor by latching onto a ridiculous amendment, which was cynically designed to give them political cover. All one can say is “nice try.”
The amendment in question would require the Government Accountability Office (GAO) “to commence a study” on the impact of the changes made to the definition of employee under the so-called “ABC” test and the definition of joint employer under the National Labor Relations Act, two of the worst provisions of an already terrible bill. Following said report, the President would be required to consider it within 60 days and maybe (or maybe not) recommend to Congress modifying one or both of those definitions. Upon that recommendation, the House “shall consider” what to do next, if anything.
Big deal. No one who has spent any time in Washington thinks that such an amendment will have any practical impact or do anything to lessen the outrageous provisions contained within the PRO Act. And no one should be fooled into thinking it’s a legitimate expression of concern over the impact of the bill’s radical re-write of labor law. In reality, conducting such a report would be like performing an autopsy to see how your patient is doing.
One of the biggest flaws of the PRO Act is its attack on independent contracting through nationwide imposition of California’s disastrous ABC test. Evidence already exists to understand how damaging it would be without the need for a GAO report. As this blog has recounted numerous times, California’s law has been devastating for independent contractors operating in industries ranging from acting to journalism. In fact, it wrought so much havoc that two ride-sharing companies, Uber and Lyft, nearly ceased operations in California, and voters overturned key aspects of it barely a year after the law passed.
That’s just one of the numerous objectionable aspects of the PRO Act, and there are many more, including the language around joint employer, which is intended to make businesses liable for workers they don’t actually employ and workplaces they don’t actually control—in the process wrecking the franchise industry. Among the bill’s other radical provisions are an effective repeal of right-to-work laws that currently exist in 27 states, a weakening of the National Labor Relations Board’s secret-ballot process for representation elections, violations of worker privacy, the legalization of “secondary boycotts” that would allow unions to harass neutral third-parties, the removal of fundamental legal rights for employers, and the imposition of personal liability for directors and officers of employers.
The PRO Act is nothing less than a sop to organized labor bosses, who have been pushing it for years. Their rationale is fairly obvious: they want more members (and their dues money). Despite what labor leaders say about the cause, the union movement has been in a decline since the mid-1950s, and it’s not because labor law has changed much. Rather than improve what they offer to workers, however, they would rather re-write the law to force those workers to join.
The PRO Act would enact some of the very worst ideas in labor law and damage the economy while it tries to recover. Why any lawmaker would support this deeply flawed proposal, or think that a GAO study provides an excuse to do so, is anyone’s guess, but in the end voters will have the final say.