Employee or Independent Contractor?

No, The PRO Act Wouldn’t “Kill” Freelancing 

National Labor Relations Act book

From Labor Law Lite, Brandon Magner discusses the Protecting the Right to Organize Act (the “PRO Act”) and its narrow application to the National Labor Relations Act (“NLRA”). Brandon argues that by applying only to an employee has rights under the NLRA, the PRO Act does not affect many of the employee/independent contractor questions. Brandon writes:

The ABC Test, if passed as part of the PRO Act, would only affect the analysis of employee vs. independent contractors status for the purposes of the NLRA. Put simply, the relevant question is whether certain workers possess rights under Section 7 of the NLRA, which guarantees employees (and employees only) the right to strike, collectively bargain, and engage in various other “concerted activities” for “mutual aid or protection.” Those deemed independent contractors under the NLRA have no such rights, and indeed would likely be engaged in price-fixing under antitrust law if attempting such tactics.

What would the PRO Act not affect? Literally anything else. It would not change a worker’s employment status for the purposes of state laws, such as those involving minimum wage, overtime, unemployment compensation, or various benefit schemes. Thus, a worker could feasibly be classified as an employee with unionization rights under the NLRA while still qualifying as an independent contractor under said state laws. Just ask SAG-AFTRA or IATSE, who count many “freelancers” in the entertainment industry as members; they have no consistent employer but still collectively bargain for superior wages and benefits compared to non-union counterparts.

We can drill down into the processes of how unionization actually occurs in this country to further dispel concerns. Unionization materializes through two processes under federal labor law: voluntary recognition by an employer or certification by the National Labor Relations Board. Neither can lawfully occur without demonstrated majority support (read: 50 percent plus one) by the proposed bargaining unit of workers seeking unionization. The NLRB is statutorily prohibited from seeking out unfair labor practice charges or representation petitions for elections to investigate on its own; the agency can only process those charges or petition which are filed to it by members of the public. Moreover, the NLRB can only begin to process a petition upon a showing that at least 30 percent of the proposed bargaining unit supports unionization. It will then direct an election, in which the union must win the 50%+1 number of participating voters to earn certification.

But as a threshold matter, the NLRB will only process a petition if the workers in the affected bargaining unit qualify as employees under the Act. Even under the ABC Test, employee status will not be assumed (even if presumed); the agency will first have to determine this for itself through a preliminary investigation.

What does all of this mean? There should be an obvious takeaway: any concern regarding forced unionization is simply baseless. The Wagner Act system of voluntary unionism, assuming even nominal employer opposition to a request for recognition, requires a detailed administrative investigation for majority support before unionization is ever conferred in a workplace. Even assuming a finding of employee status under the ABC Test (following a deliberate invocation of the NLRB’s assistance), freelancer journalists simply do not have to worry about being unionized unless a demonstrated majority of their freelancing-colleagues at a website desire it. If we are to believe that an overwhelming majority of freelancers sought and cherish their independent status, then unionization remains a virtual uncertainty for these workers going forward regardless of how strong you make the employee presumption under any corresponding legal test.

Read the full story at No, The PRO Act Wouldn’t “Kill” Freelancing – Labor Law Lite

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