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A Joe Biden White House could be a boon for union activists as the Democrat seeks to implement a controversial California labor law nationwide.
House Democrats passed the PRO Act in February 2020 in a mostly party-line vote. The bill empowers the National Labor Relations Board to fine employers for violations of employee rights and allows the classification of independent contractors as employees. It also weakens right-to-work laws in more than half of the states in the country.
Michael Lotito, co-chair of Littler’s Workplace Policy Institute (WPI), said that the adoption of the PRO Act on the federal level would be one of the most dramatic labor reforms in American history. “It’s like putting 100 Christmases together as a gift to labor,” he told the Washington Free Beacon in a phone interview.
The bill is similar to California’s Assembly Bill 5, passed last year. AB5 created a three-step test to limit the employers’ ability to classify their employees as independent contractors. A report from Littler’s Workplace Policy Institute suggests a Biden administration could adopt similarly pro-union standards in 2021.
“The PRO Act is viewed by some as an attempt to restore organized labor’s role in Democratic Party policymaking,” the WPI report states. “The act’s future depends on the two Senate races in Georgia that will determine control of the Senate.”
“If Republicans maintain control, the PRO Act will almost certainly fail to advance,” the report continues. “In that case, the Biden administration would have to shape labor policy by other means, including by flipping the National Labor Relations Board majority and appointing a Democratic general counsel during President-elect Biden’s first year in office.”
On his campaign website, Biden called for implementing California’s employer-classification standards to target the gig economy and other industries that rely on independent contractors. Federal labor laws would be more difficult to challenge in court than state labor laws, Lotito said.
“On a nationwide scale, the ABC test, or the situation in California, then becomes the law of the land in all 50 states,” he said. “The independent contractor model is going to be destroyed as a result of the ABC test.”
The adoption of the principles of AB5 on a national scale in the PRO Act would have widespread impact on how employees are classified. The California law is already being challenged in state and federal courts by small-business owners and franchise operations. Kerry Jackson, a California Studies fellow at the Pacific Research Institute, said the policies have already hindered the Golden State’s economy and could do even more damage if applied federally.
“AB5 has already wrecked the personal finances of many in California and stripped workers of their freedom,” Jackson told the Free Beacon. “It’s also a threat to any business that relies on independent contractors to be profitable. On a national basis, the damage would be even worse.”
A Biden presidency would be able to accomplish reforms through executive orders. Biden, who did not respond to request for comment, stressed his commitment to supporting worker unionization by saying he would impose “a personal price” on business leaders who resist attempts to unionize.
“I’m going to hold company executives personally liable for interfering with workers who are attempting to unionize. It’s not enough just to have their corporations pay a fine. If they’re part of the problem, they are going to pay a personal price,” he said.
Labor unions donated more than $1 million to Biden’s presidential campaign, and 87 percent of unions’ total contributions went to Democratic candidates or causes.
Jackson said that Biden does not need control of Congress to enact regulations that will harm employers.
“I imagine he’ll use executive orders as much as the courts will allow him to,” Jackson said. “His boss of eight years was not shy about using his pen and phone to make rules he couldn’t legitimately get out of Congress.”