Live After Quit

The PRO Act Is Not Just a Union Handout—It’s an Assault on the Freedom of Association Itself

On February 4, 2021, Democrats in the House and Senate introduced the Protecting the Right to Organize (PRO) Act. Like many names in Washington, this one is an Orwellian misnomer that does the exact opposite of what it claims to be doing. If passed, the bill, which is basically a union wish list, would radically transform the nature of the labor market in the US with numerous sweeping and heavy-handed changes. Andy Levin (MI-09), a sponsor of the bill, doesn’t bother to hide its envy-driven prounion goals; in his press release, he whined about income inequality and stated that “The PRO Act would reverse years of attacks on unions and restore fairness to the economy by strengthening the federal laws that protect workers’ right to join a union and bargain for higher wages and better benefits.”

The bill’s cheerleaders may talk about how it will give workers the ability to choose to exercise their rights to organize at work, but much like the mafia, this bill will ensure that the choice to unionize is one that workers can’t refuse. In a sweeping assault on federalism, it would overturn right-to-work laws in twenty-seven states that allow workers at unionized workplaces to opt out of being in the union and paying dues. If your workplace forms a union, you will have to be in it.

And, not to worry, the PRO Act will ensure that almost every vote to organize will come out in the union’s favor, one way or another. The labor law firm SmithAmundesen reports that the bill would expand the kinds of workers who can unionize and would give the union the power to determine how votes will take place. In the event that the union loses and complains about the company, it can use a method called “card check” where instead of having a secret ballot, unionizers can intimidate and harass employees into signing a card saying they want the union to represent them. Under current labor rules, if a majority of employees have signed such a card, then the workplace can either accept the union or have the federal government organize a secret-ballot election. Under the new rules, after the union claims to have a majority of signatures, unionization is automatic, with no vote.

SmithAmundesen also reports that the law would prevent an employer from withdrawing recognition of the union, even if the employer has proof that employees no longer desire the union’s representation, and also allows unions to demand that companies agree to not do business with nonunion companies.

What is portrayed as an opportunity for choice is really a method of railroading as many workers as possible into paying union dues (which can then be funneled to political campaigns) one way or another.

While these moves by big labor are certainly annoying and egregious (I have written previously about my own time spent in a unionized workplace) they are nothing surprising. What is truly the most outrageous aspect of this proposal is that it institutes California’s “ABC test,” which forces businesses to reclassify independent contractors as employees if they fail to meet three criteria. According to the California government:

Under the ABC test, a worker is considered an employee and not an independent contractor, unless the hiring entity satisfies all three of the following conditions:

• The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
• The worker performs work that is outside the usual course of the hiring entity’s business; and
• The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

There have already been mountains of coverage of the disastrous results of this policy. Former Mises summer fellow Peter St. Onge has written about how the scheme is likely to result in lower wages for contractors turned employees. But that only applies to those fortunate enough to keep working. Writing at Reason, Billy Binion has documented numerous instances of freelancers in California being basically blacklisted from numerous companies located outside the state because of the new bureaucratic hurdles that came with them. Uber and Lyft simply defied the law and said they would ignore it, which they did until a popular referendum added app-based drivers to the list of exceptions to the rule.

On its face, the ABC test is merely another way to corral employees into dues-paying unions. However, its unseen effects are even more insidious and will lead to more state power and centralization. The federal government seeks to obliterate and subsume all sources of power outside itself, as it has already done with the lower levels of state authority in our federalist system, and the nonstate mediating institutions of social power such as the family and community. The freedom of association, whether in one’s private, public, or economic life, is an essential freedom upon which many other freedoms rest; therefore, its further degradation is extremely alarming.

As someone who has made a living writing as an independent contractor for the past few years, I can attest that it is not always the most secure and easiest way to work in the world, but I find that this insecurity is worth it, because in exchange I have a great deal of independence and freedom. I do not have any bosses to answer to, I don’t have any HR departments to listen to, and I can work whenever I want. I am very free to organize my life how I desire.

Those in power have good reason to detest this freedom. As government bureaucracy continues to metastasize throughout the economy, like a malignant cancer, increasingly more employees fall under its authority and control. Unlike regular employees, independent contractors do not have to sit in HR seminars to be force-fed woke social justice garbage or engage in struggle sessions to cleanse themselves of their gender and ethnic privilege. By forcing formerly independent workers together, they become easier to control and manipulate.

Not only do those in power benefit from centralization, but it provides numerous opportunities to provide patronage to those seeking reprieve from the law (and therefore allows them to derive even more power). The California law is stuffed full of exceptions and carve outs for different professions and industries. Uber and Lyft were able to orchestrate a successful referendum campaign to have their business model added to the list. But tough luck to freelancers in industries that don’t have multiple multibillion-dollar tech giants backing them or an army of lobbyists at the ready.

The relevant part of the current draft of the federal bill (section 101) doesn’t even mention any exceptions at all. No doubt that if the bill seems to have a chance of passing, lobbyists will be pouring into politicians’ offices to bow and scrape in order to protect their industries and secure exceptions and carve outs. You can’t blame businesses for trying to defend themselves in this way, but such a situation flies in the face of the idea that the law is for everyone and further feeds the culture of corruption and cronyism.

The PRO Act may claim that it is all about freedom and choice, but in the end, it will only result in less choice, less freedom, and more government control.