Democrats are using perceived worker suppression to push unwarranted labor legislation through Congress.
This week, the National Labor Relations Board will hold a hearing to evaluate last month’s failed union drive in Bessemer, Alabama. The board will hear from labor organizers, who filed 23 objections against Amazon for stifling employee choice and disrupting a fair election. Many lawmakers, including Sen. Bernie Sanders, are using the Amazon election as justification for pro-union reform. But the legislation he and his Democratic colleagues are proposing will do nothing to improve the employment landscape. Workers need reform, but the Democrats’ PRO Act and infrastructure proposal miss the mark.
The NLRB has the power to overturn or set aside election results if “conduct by the employer or the union created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice.” According to Reuters, the NLRB has already said that the evidence submitted by the union could be grounds for overturning the election.
At first blush, it seems that Amazon was aggressively anti-union. Amazon, the second-largest employer in the United States, reportedly spent $10,000 per day on consultants, in addition to posting signs around the warehouse and setting up an anti-union website. Employees were required to go to mandatory, anti-union presentations during work hours, referred to as “captive-audience meetings.” Captive-audience meetings are legal if they are held before the election begins, but pro-union activists claim that this, among other measures, are examples of blatant intimidation.
The NLRB will determine if Amazon illegally interfered with employees’ freedom of choice. The labor board’s decision won’t be announced for a few weeks, but some lawmakers have already made up their minds that the election necessitates legislative reform. Ironically, their proposals would erode choice and bog down organized labor with ill-fitting regulations.
There’s nothing wrong with being pro-union. My grandparents greatly benefited from unions, and I support the right to unionize. But the Democrats’ proposals are just political theater. They don’t address perceived or actual problems that occurred during the Amazon vote, or anywhere else, for that matter.
The Amazon election occurred on the heels of the Protecting the Right to Organize Act, a “labor-friendly” bill that was passed in the House of Representatives in March and is now in the Senate. In last week’s address to Congress, President Joe Biden described the PRO Act as a safeguard for the right to unionize.
Although the PRO Act is facing an uphill battle in the Senate, its most significant provisions are buried in Biden’s $2.3 trillion infrastructure proposal. If the Democrats’ reforms are passed through any of these channels, new regulatory hurdles will be introduced without considerable benefit. Workers will lose their right to choose whether union membership is right for them. The bills will turn the initial collective bargaining process into a sprint, hastily decided or else imposed by an arbitrator. Most notably, California’s botched ABC test will become the prevailing standard around the country.
Gig workers, or nonemployees who complete temporary, on-demand services, or “gigs,” for companies, desperately need legal clarification. Labor law only recognizes two types of workers: independent contractor and employee. Gig workers do not fit neatly into either category. For years, legal experts and judges have referred to this quandary as the “square peg in a round hole” dilemma. But Democrats are unilaterally deciding that gig and other nontraditional workers are employees, largely because it is politically expedient to promise higher wages and benefits.
California’s ABC test is not a model for the country. It’s plagued with inconsistencies: Last year, app-based companies carved out an exemption for themselves with the passage of Proposition 22. Recently, the U.S. Court of Appeals for the 9th Circuit said that California’s test applies to the trucking industry, even though the same classification scheme doesn’t apply to trucking in Massachusetts.
Even worse, the ABC test grossly oversimplifies the diverse nature of work. It forces workers in nontraditional employment models to forgo their preferred employment structure and adopt a state-mandated one.
The Department of Labor just repealed the Trump-era independent contractor test without proposing new classification. This provides the PRO Act with a clear path forward while leaving millions of workers in limbo.
The devolving discourse surrounding labor, from Bessemer to Washington, D.C., should prompt the public to consider what reform is genuinely needed. Since the PRO Act doesn’t address real problems, lawmakers should try instead to fix employment classifications or, at the very least, protect freedom of choice for workers.
Rachel Chiu (@rachelhchiu) is a Young Voices contributor who writes about technology and employment policy.
