FRIEDA WILEY, MAR 19, 2021
On Tuesday, March 9, 2021, the House of Representatives passed H.R. 2474 – Protecting the Right to Organize Act of 2019 (PRO Act)—a bill that aspires to protect employee rights in the workplace. In a nutshell, the law ensures that workers receive fair wages and benefits. However, it simultaneously threatens the survival of the 57 million Americans in the gig economy—one-third of the U.S. workforce.
Despite its limitations for independent contractors, the bill makes some great strides to shield employees. For example, the bill outlaws company interference with employee unionization. The same provision also precludes the employer from sponsoring mandatory meetings that could subvert union organization and private union elections.
Equally important, the proposed legislation holds corporations accountable for any retaliation taken against workers seeking to unionize by imposing monetary fines.
The bill also makes it illegal to use a job seeker’s immigration status as a factor in denying employment.
The PRO Act bill is not a novel concept, but rather the offspring of California Assembly Bill 5, which went into effect on Jan. 1, 2020. Like its AB5 prototype, the PRO Act bill amends the Labor Relations Act (or Wagner Act), passed during Franklin Roosevelt’s administration. The act became the first labor law passed by the United States government and the first to grant rights to workers. This law guaranteed non-government employees the right to form unions and engage in collective bargaining.
At the time of the enactment of the Wagner Act, pro-union legislation made sense, as it reflected the nation’s socioeconomic climate submerged in the Great Depression. Many businesses faltered, but those involved in staple industries, such as manufacturers of televisions, refrigerators, and other consumer products, and service industries such as entertainment and medical care, managed to stay afloat.
The workforce comprised members of the World War II-era Greatest Generation and the subsequent Silent Generation. Both groups shared similar values regarding work ethic and company loyalty—characteristics that strongly aligned with an era in which people could often expect to work in their first jobs until retirement.
After 85 years, the Wagner Act is overdue for a much-needed makeover. Many industries that thrive today—such as technology, social media, and environmental—did not exist a century ago. Although the Baby Boomers, Generation X, and Millennials in these roles have markedly different values, all three generations share some level of affinity for the gig economy and are more likely to have a side business than their predecessors.
The face of the workforce has also drastically transformed, with more women holding employment and more female and minority representation in leadership. In addition, as YES! Magazine reported in its 2016 issue dedicated to the gig economy, the number of independent contractors is and is expected to continue growing.
So why then do PRO Act and AB5 contain antiquated provisions designed for an era and culture that no longer exist?
For all their good intentions, the ultimate kryptonite of the PRO Act and AB5 lies in something called the ABC test, which uses three criteria to determine whether a person should be considered an independent contractor. Clauses A and C seem fairly benign, noting that the person is “free from control and direction with the performance of the service…” and “customarily engaged in an independently established trade, occupation, profession, or business of the same nature” as the service performed.
The problems arise with Clause B, which specifies that contractors should provide a service “outside the usual course of business of the employer.” In other words, under PRO Act and the AB5, companies cannot hire independent contractors to do the same job as someone on their payroll when that is the company’s core business activity. This means the contractor must become an employee—or find a client who lacks the services they provide in-house.
Look no further than California since AB5’s passage for evidence of harm. Many small businesses, independent contractors, and freelancers in California suffered—many of them women and people of color. This comes at a time when the number of businesses owned by women of color have surged, surpassing the 58% average rate for all women-owned businesses. In 2018, 2.1 million Latinas and 2.4 million African American women owned their own business—increases of 172% and 164%, respectively, since 2007. If the PRO Act becomes law, it will strike a mighty blow at these and other communities nationwide.
Similarly, the bill threatens to decimate some industries altogether. Some companies lack the finances and infrastructure to hire employees to do the work they previously outsourced to gig workers. Such was the case with the trucking company Landstar, which severed ties with its contract truck drivers in advance of the AB5’s passage.
Independent car services such as Uber and Lyft sued the state of California and won an exemption to the law’s requirement to make their drivers full employees with benefits.
Beyond the transportation industry, the entertainment industry may largely disappear. Many artists, art directors, and musicians belong to the gig economy. Under the new law, jazz musicians who organized as a cooperative to play weekly gigs would have to be hired as employees. The online company Vox Media let go more than 200 freelance journalists instead of hiring them as staff.
Interestingly enough, the bill uniquely challenges the livelihood of independent journalists and freelance writers. California’s AB5 allowed freelance writers to remain independent, but capped the number of articles a freelancer could submit to a corporation at 35 per year. Any articles above that number require the writer to become an employee. Writers who become employees usually do not retain rights to their work.
What amplifies the ABC test’s dangers is its failure to align with today’s economy, industries, and working generations. Baby Boomers view gig roles as plausible transitions into retirement, while Millennials relish in the work-life balance it provides. Working parents and caretakers appreciate the schedule flexibility.
Despite the negative impacts of AB5 in California, the PRO Act is based on AB5, without any amendments that acknowledge these groups’ needs. Even sadder, these issues are not isolated to the United States. Several European countries are wrestling with the challenges of having passed similar legislation.
Protecting employee rights is ethical, righteous and humane. However, shielding full-time employees should not compromise the livelihood of the 57 million Americans who earn income through other lawful means.
Should the Senate pass the bill in its current form, the U.S. economy will have additional stressors beyond the continued aftershocks of the COVID-19 pandemic. Hopefully, the federal government can find some middle ground in an arena where the scales appear unbalanced.
(Sources: Yes!)
Đăng nhận xét