PRO Act would take U.S. in California’s wrong direction
Supporters of the federal Protecting the Right to Organize Act have been rebutting critics who have described the proposal as the national equivalent of California’s Assembly Bill 5, which largely banned California companies from hiring freelance or contract workers. They say that the so-called PRO Act would do no such thing.
That act, which recently passed the U.S. House of Representatives and awaits Senate action, is indeed different from AB 5, which threw California’s economy into tumult as employers shed freelance jobs. To mitigate job losses, state lawmakers exempted 100 industries from its provisions. Then voters in November approved Proposition 22, which exempted ride-share and delivery drivers.
Whereas California lawmakers designed AB 5 to force private companies to hire their workers as permanent employees, federal lawmakers created the PRO Act to make it easier for permanent and contract employees to organize into unions. The federal bill, however, includes a key element found in the California law. They both use an “ABC test” to determine a worker’s status.
That test was an outgrowth of the California Supreme Court’s 2018 Dynamex decision, involving a delivery company that converted its employee drivers to contractors. The court concocted the threepronged test for determining when a company could use a contractor. Workers must not be controlled by the company. They can’t be performing core company tasks. They must have independently chosen to go into business for themselves.
AB 5 applied that test to California’s labor code, whereas the PRO Act applies it to the National Labor Relations Act, which governs collective bargaining. So, technically, the test would only be used federally to determine which employees can unionize. But adding the test creates a murky situation — and the courts could ultimately extend the test beyond collective bargaining.
Furthermore, on the campaign
trail Joe Biden vowed to back legislation that would apply AB 5’s provisions nationwide. Inserting the ABC test into the federal code may indeed be the first step toward achieving this broader agenda beyond California.
The PRO Act would be the first time the federal government adopts this test, wrote the U.S. Chamber of Commerce’s Sean Redmond in a blog. He deems it “quite likely that once this ABC test is established under one law, it will be the pretext for it to spread into other areas, and we have already seen the Department of Labor engage in rulemaking on independent contracting.”
Seeing what Democratic leaders have said and done on these labor issues, you can take that prediction to the bank. They believe that the best way to boost workers’ fortunes is to impose tougher labor regulations on job-producing companies — and to let unions control the terms of employment.
Californians have seen what happens when government officials are able to act on those priorities. Our progressive state has the nation’s most restrictive labor regulations. Unions enjoy every imaginable privilege. Although California remains an economic powerhouse, businesses and job seekers continue to flee in droves for lower-cost, lower-regulation states, while the state’s poverty rate remains the highest in the nation.
Although PRO Act supporters are right that the proposed federal law is much different from California’s AB 5, it would help push federal policy onto California’s troubling path. That’s something that American workers simply cannot afford.