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Last year, gig workers and tech companies went to battle in California over Proposition 22, which solidified the status of gig workers in that state as independent contractors. Now, the fight has moved to the federal level thanks to the Protecting the Right to Organize Act. The bill, which is currently in the Senate, would make it far easier for gig workers and other independent contractors to unionize and bargain collectively.
The PRO Act would alter the definition of "employee" in order to broaden the number of people who are covered by the National Labor Relations Act, which protects the rights of employees and encourages participation in collective bargaining. To determine whether a worker is an employee or independent contractor, the NLRA would use the test outlined in California labor law AB 5. That test looks at whether the person is free from the employer's control, does work that is outside the scope of the company's normal business operations, and conducts similar work independently and outside the context of the employer. That test would likely result in the classification of gig workers as employees, Rey Fuentes, a Skadden Fellow at the Partnership for Working Families, told Protocol.
The legislation would also make it illegal for employers to require workers to attend meetings that are designed to discourage them from joining a union, allow unions to collect dues from workers even if they had previously opted out as a result of being employed in a "right to work" state and more.
The PRO Act is a response to the decline in union membership over the last many decades. In 1983, 20.1% of wage and salary workers were unionized in the U.S., according to the Bureau of Labor Statistics. Since 2016, unionized workers have represented less than 10% of the U.S. workforce.
The large drop in total employment in 2020 increased the percentage of unionized workers slightly last year, to 10.8%, according to the BLS, but the actual number of unionized workers is still down 2.2% since 2019.
Tech companies worry that the PRO Act could set a precedent that would lead to the overall reclassification of gig workers as employees. Organizations that help gig workers organize, however, see it as a way finally to get a seat at the table.
Carlos Ramos, a rideshare driver and organizer with Gig Workers Rising, sees the PRO Act as another tool in the arsenal.
"When the PRO Act passes, that doesn't mean everybody is just in a union now," Ramos told Protocol. "What it is, is giving us the opportunity to choose for yourself if this is the right way. And that's a lot more than we have right now."
The PRO Act also has the support of President Joe Biden, Rideshare Drivers United and a slew of progressive lawmakers and activists. Proponents of the bill say the PRO Act will strengthen unions and increase the power of the working class.
Companies such as Uber, Lyft, DoorDash, Postmates, Instacart and others oppose the bill. They say the PRO Act will hurt American competitiveness, give unions too much power and take away flexibility from gig workers.
The App-Based Work Alliance, a coalition formed by Uber, Postmates, DoorDash, Instacart and Lyft, called on the Senate earlier this week to reject the PRO Act. In its statement, ABWA said the PRO Act would "end flexible and independent earning opportunities" for workers as well as "force them into rigid schedules."
However, the PRO Act would only consider independent contractors as employees in the context of forming a union. The bill, if passed, would not force on-demand companies into classifying workers as employees. It would simply broaden the definition of "employees" in the NLRA.
Still, ABWA believes the bill would set a precedent for future litigation and legislation. Whitney Mitchell Brennan, a spokesperson for ABWA, told Protocol there would be "real-world consequences" from the passage of the bill on workers who prefer to be independent contractors.
"It would also set a precedent for federal agencies, as well as states and courts who are deciding cases on this issue, to follow suit and do the same," Brennan said. "That's exactly what will happen if the PRO Act passes with California's ABC test included in it, and it will lead to the same uncertainty and job losses that we saw in California with AB 5."
Jean Gauvin, a Florida-based gig worker who is against the PRO Act, similarly believes that the legislation would eventually lead to him losing his flexibility as an independent contractor.
"Things happen incrementally," Gauvin told Protocol. "They're not just going to lay down the hammer. No one ever tells you what they're really going to do all at once."
But the "slippery slope" argument "feels a little overblown," Fuentes said.
There's already litigation that is exploring whether a group of Uber Black drivers are employees under the Fair Labor Standards Act, Fuentes pointed out.
"I don't think it takes the PRO Act to see that there are movements under every element of federal law to ensure these workers are protected," Fuentes said.
The right to collectively bargain
Collective bargaining enables employees, through their union, to negotiate contracts with their employers to determine wages, benefits and other policies. As it stands today, gig workers are not eligible to do this, even though some groups have been successful in their efforts to organize large numbers of gig workers.
In 2019, the NLRB General Counsel issued a memo categorizing Uber drivers as independent contractors, not employees. That means Uber drivers don't have the same rights and protections available to employees under federal labor law. The PRO Act would essentially flip that, and say these workers should not automatically be presumed to be contractors, Fuentes said.
"That determination is really critical," said Fuentes. "The PRO Act essentially reverses that and says that none of these workers should be presumed employees but we should determine whether or not they are independent contractors or employers by using the ABC test. And that ABC test would likely result in their designation as an employee."
If designated as employees under the NLRA, gig workers would be protected from employer retaliation when discussing workplace issues with other workers. They would also be allowed to bargain collectively.
"I think that it's incredibly critical for workers to be able to access a level playing field and to be able to organize like any other worker would be able to organize," Fuentes said.
Erica Mighetto, a rideshare driver and organizer with Rideshare Drivers United, says her support of the PRO Act is about preserving civil liberties for gig workers.
"At this point, we're kind of checking our First Amendment [freedom of speech and expression, and right to assemble] at the door of our workplace," Mighetto told Protocol.
The lack of explicit legal protection hasn't stopped Mighetto and her comrades at RDU from organizing. RDU has some of the underpinnings of a union, boasting 20,000 members with a member-elected board that has already established its own bylaws.
"So if you ask me, I consider us a union," she said. "A union in progress."
The hurdles ahead
In March, the House of Representatives approved the PRO Act with a vote of 225 to 206. The bill, however, still needs to pass in the Senate before moving to President Biden's desk to be signed into law.
President Biden has previously said he supports the PRO Act and wants to see it pass. In March, the White House officially endorsed the PRO Act, saying it would clarify that employers can't force employees "waive their rights to join together in collective or class action litigation."
But the PRO Act will likely face hurdles in the Senate. Although Democrats control the Senate, they do not have enough votes to overcome a filibuster.
Still, it's a battle worth fighting because this is a critical issue for gig workers, Fuentes said.
"Unionization not only balances the power that a worker has in the workplace, but addresses core challenges that are true in the gig economy," Fuentes said. "Like pay disparity, for example, or structural racism as it relates to occupational segregation, or the benefits that workers of color receive on the job."
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