Today’s News & Commentary — May 3, 2019

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.”