Like any good Marxist, Alex Press reveres working people. That’s why the Jacobin staff writer demands unionization for those who want it. And for those who don’t. And, surely, it’s why she judges workers who reject collective bargaining as ignoramuses who suffer from “widespread confusion.”
Variations of that phrase appear throughout her March 26 New Republic article flaying the many independent professionals who oppose a radical labor bill favored by President Biden. Called the Protecting the Right to Organize (PRO) Act, it would prohibit state right-to-work laws that protect workers from paying involuntary union dues. It would furthermore classify most contract workers as employees, thus subjecting them to the National Labor Relations Act (NLRA).
Press insists the bill, which passed the U.S. House in early March, does not impinge on contractors’ autonomy in any meaningful sense. “The PRO Act is not intended to change the employment status of freelancers,” she writes, “nor will it force companies to do so.” As we’ll see, the “confusion” is all her own.
The proposed law, using the so-called “ABC test,” would permit workers to keep their independent-contractor status only if: “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.”
The inability of most independent contractors to meet all three conditions would render them ineligible to operate as such. That would harm millions of livelihoods, as almost 59 million Americans performed freelance work in the last year, more than 15 million of whom did so full-time. (It also bears noting that those who supplement their income through independent contracting are especially unlikely to satisfy the ABC test and can expect to suffer overwhelmingly.) Survey data from the Bureau of Labor Statistics shows that about nine of every 10 freelance workers wish to continue operating independently. Multitudes of writers, information-technology professionals, and other workers have thus mobilized against the PRO Act.
Press argues that these professionals are ignorant of how the act would actually impact them. Specifically, she asserts that the legislation would only reclassify independent contractors as employees by applying NLRA protections of collective bargaining; she stresses that the bill doesn’t treat these contractors as staffers under other labor laws, e.g., wage and hour regulations, like California’s infamous AB5 law does. In short, the PRO Act only helps workers collectively bargain. Who among them could object to that?
But awkwardly, Press proceeds to quote Professor Michael LeRoy of the School of Labor and Employment Relations at the University of Illinois Urbana-Champaign. Though a supporter of the PRO Act, LeRoy had been quoted in a Forbes article as saying “the law would possibly limit work for women, retirees, college students and other similar demographics.” Press claims the professor “tells The New Republic that the Forbes column misrepresents his views.”
Curious readers can view the full text of the original interview LeRoy gave to his university’s Illinois News Bureau. He spoke precisely the words Forbes attributed to him, reiterating his observation that the PRO Act “would likely have adverse effects on some types of workers.”
LeRoy’s concluding remarks to the Illinois News Bureau are striking: “But let’s not forget what the PRO Act does: It would allow workers to vote for or against a union. If workers fear loss of jobs due to forming a union, they should vote no and keep the status quo.” Of course, under the PRO Act, workers who don’t wish to join a labor organization cannot refuse to pay union dues and will have no real power to negotiate their own contracts.
Private-sector workers who want to operate in collective bargaining units should always have that right, so long as they don’t compel the participation of their unwilling colleagues. But anyone considering such an arrangement should understand that the general effect of unionization on American incomes over the last half century hasn’t been positive. As Ohio University economist Lowell E. Gallaway and his research associate Jonathan Robe demonstrate in their 2014 study “The Unintended Consequences of Collective Bargaining”, unions have made labor more expensive, thereby curbing job opportunities in unionized sectors, raising the labor supply in nonunion industries, and in turn lowering wages in the latter occupations. While wage growth across the American workforce is imperative, it is only sustainable in the long run through rising productivity.
Not only does the PRO Act reject the proper course for enriching American workers, it introduces a host of outrageous changes to U.S. labor law. One provision would grant unions access to employees’ personal contact information—including cell phone numbers and email addresses!—in the run-up to a unionization election. Another would deny the right of workers to a secret ballot in such elections. The bill would furthermore force businesses to allow the use of their equipment (e.g. phones, computers, and email systems) for union purposes.
Congressman Henry Cuellar (D-TX) summed up this legislation correctly when he tweeted, “This bill would destroy small businesses and thousands of Texas jobs in our communities who are struggling to stay alive during this pandemic.” Sadly, he was the only House Democrat to oppose the bill. May it die gloriously via filibuster in the Senate.