Alisha Jarwala is a student at Harvard Law School and a member of the Labor and Employment Lab.
On Thursday, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act, which seeks to strengthen workers’ rights to organize and bargain. Some of the bill’s highlights:
- Amending the definition of employee to prevent misclassification as an independent contractor;
- Prohibiting employers from permanently replacing employees who strike;
- Overturning Epic Systems Corp v. Lewis and ending prohibitions on collective and class action litigation;
- Strengthening remedies and enforcement for employees exercising their rights, including a private right to civil action for employees who face retaliation for joining a union or engaging in protected activity
“[T]here are currently no meaningful penalties for predatory corporations that use unlawful tactics to discourage workers from organizing a union,” said Congressman Bobby Scott (VA-03), chairman of the House Committee on Education and Labor. “The PRO Act is a comprehensive proposal to ensure that workers have the right to stand together and negotiate for higher wages, better benefits, and safer working conditions.”
Moving west, California is considering legislation that would codify the “ABC” test established by the 2018 California Supreme Court ruling in Dynamex Operations West, Inc. v. Superior Court. The Dynamex ABC test (discussed in prior OnLabor coverage here) requires that an employer who wants to classify workers as independent contractors establish that the worker is free from control and direction of the employer; that the work performed is outside the usual course hiring entity’s business; and that the worker is customarily established in an independent trade of the same nature as the work performed.
Dynamex had a good day: the Ninth Circuit held yesterday in Vazquez v. Jan-Pro Franchising Int’l Inc. that the ABC test applies retroactively. This decision will have significant implications for California businesses, including gig economy companies like Uber as well as franchised businesses like McDonald’s. Allowing the ABC test to be applied retroactively means that employers could be liable for misclassifying workers going up to four years back.
Bloomberg reports that NLRB General Counsel Peter Robb is on pace this fiscal year to revive seven times more unfair labor practice cases brought against unions than against employers. General counsels have discretion to revive previously dismissed cases, and Robb has focused extensively on union wrongdoing—last year, he ordered staffers to start pursuing charges against unions for negligent behavior, which the agency had formerly viewed as harmless error. “Reorienting the general counsel’s office to pay more attention to allegations of union wrongdoing fits with Robb’s reputation as a disruptor who wants to change the way the agency operates,” the article notes.
Finally, during testimony to the Education and Labor Committee on May Day, Labor Secretary Alexander Acosta reminded lawmakers: “We do not support a change in the federal minimum wage at this time.”
Daily News & Commentary
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July 2
Block, Nanda, and Nayak argue that the NLRA is under attack, harming democracy; the EEOC files a motion to dismiss a lawsuit brought by former EEOC Commissioner Jocelyn Samuels; and SEIU Local 1000 strikes an agreement with the State of California to delay the state's return-to-office executive order for state workers.
July 1
In today’s news and commentary, the Department of Labor proposes to roll back minimum wage and overtime protections for home care workers, a federal judge dismissed a lawsuit by public defenders over a union’s Gaza statements, and Philadelphia’s largest municipal union is on strike for first time in nearly 40 years. On Monday, the U.S. […]
June 30
Antidiscrimination scholars question McDonnell Douglas, George Washington University Hospital bargained in bad faith, and NY regulators defend LPA dispensary law.
June 29
In today’s news and commentary, Trump v. CASA restricts nationwide injunctions, a preliminary injunction continues to stop DOL from shutting down Job Corps, and the minimum wage is set to rise in multiple cities and states. On Friday, the Supreme Court held in Trump v. CASA that universal injunctions “likely exceed the equitable authority that […]
June 27
Labor's role in Zohran Mamdani's victory; DHS funding amendment aims to expand guest worker programs; COSELL submission deadline rapidly approaching
June 26
A district judge issues a preliminary injunction blocking agencies from implementing Trump’s executive order eliminating collective bargaining for federal workers; workers organize for the reinstatement of two doctors who were put on administrative leave after union activity; and Lamont vetoes unemployment benefits for striking workers.