A PROblem with the PRO Act

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Image courtesy of the UAW

The House of Representatives passed the Protecting the Right to Organize or PRO Act last month. If the bill is enacted, it would make it much easier for workers to form unions.

The bill also used the worker-friendly ABC test to define employees under the National Labor Relations Act. (NLRA) The ABC test is the cornerstone of California’s Assembly Bill 5 which extends employment protections, including workers’ compensation, to gig economy workers.

I support the PRO Act. Our firm works with many unions on workers’ compensation claims. Union workplaces tend to be safer workplaces and unions give employees job security above and beyond what non-union employees have under the employment at-will doctrine.

But I don’t think the PRO Act went far enough. I believe the PRO Act should have applied the ABC test for the purposes of federal taxes like unemployment, Social Security and Medicare. I believe that for a few reasons.

One, more tax revenue to those programs would help maintain their solvency. Two, while states control who is an employee for the purposes of workers’ compensation, the fact that an employer pays taxes on an employee makes it more likely an employee will be defined as an employee. Federal tax laws can be a thumb on the scale for workers under state laws like workers’ compensation.

I think the PRO Act’s silence on Social Security and Medicare opens the door for mischief if it is enacted as drafted. Gig economy workers organized into a union without the benefit of basic social insurance programs may be forced to accept cut-rate “portable benefit” packages in lieu of standard mandated benefits like workers’ compensation. Poorly designed portable benefit plans can shift the cost of work injuries onto workers – particularly those are not covered under state workers’ compensation laws. The tech industry has collaborated with former SEIU President Andy Stern to support these types of weak portable benefit programs.

The PRO Act is DOA in the Senate. I think it is unlikely the President would sign the bill on the off-chance it did pass through the Senate. But there is an election coming up in November. It is well within the realm of reason that come next year there could be a Democratic president and a Democratic congress. Would Democrats enact something like the PRO Act if they had the opportunity next year or in 2022?  It probably depends on who the Democratic president would be.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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