My Labor, My Choice: How the PRO Act Will Render Working Women Powerless

In the wake of the pandemic, some aspiring workers—especially women—are turning to freelancing. Why? They are desiring more flexible options as they explore re-entry into the workforce. 

Under the COVID recession, women account for 55 percent of net job losses since February 2020. As a result, many—including young mothers—have reduced their work hours compared to their male counterparts. 

Freelancing has given working women a lifeline throughout the COVID recession. Nevertheless, flexible work could be regulated out of existence. Adding to this dilemma is the Protecting the Right to Organize Act, or PRO Act.

The PRO Act is Pro-Labor Union, Anti-Worker

The PRO Act purports to be a boon to workers with its promises of better workplace protections and collective bargaining rights. But when combing through the bill it’s clear Big Labor and public sector unions, not American workers, are the only winners. 

If passed, this federal bill would codify California AB 5’s ABC test into law. The ABC test, already having ruinous effects in the Golden State, would federalize worker misclassification by forcibly reclassifying most independent contractors as employees. This change would severely limit freelancers’ ability to contract with multiple clients, thus denying millions of workers choice in business opportunities.

The PRO Act would also repeal right-to-work laws. Originating from the Taft-Hartley Act of 1947, right-to-work stipulates union membership isn’t conditional for employment. Why should workers be coerced to pay dues to a union they don’t want to join? Women will be hardest hit because they place a higher premium on flexible work arrangements.

IWF Center for Economic Opportunity Director Patrice Onwuka explained the PRO Act’ is “pro-organized labor, not pro-worker” and would, in turn, “undermine their [worker] choices and freedoms to carve the kind of life they want.”

Highly-skilled workers in flexible work arrangements will be equally displaced from the workforce, as well. Fight for Freelancers co-founder Kim Kavin observed in Entrepreneur that highly-skilled independent contractors, primarily women, are Big Labor’s biggest target if the bill were to pass in Congress or be implemented by fiat. 

Tracking the Bill’s Movements Going Forward

In March, the White House released a fact sheet for the American Jobs Plan highlighting the PRO Act as a top priority: 

President Biden is calling on Congress to update the social contract that provides workers with a fair shot to get ahead, overcome racial and other inequalities that have been barriers for too many Americans, expand the middle class, and strengthen communities. He is calling on Congress to ensure all workers have a free and fair choice to join a union by passing the Protecting the Right to Organize (PRO) Act, and guarantee union and bargaining rights for public service workers. His plan also ensures domestic workers receive the legal benefits and protections they deserve and tackles pay inequities based on gender.

As of this writing, a standalone PRO Act bill isn’t expected to pass in Congress without support from all 50 Democratic Senators. Majority Leader Chuck Schumer (D-NY) declared he’ll bring the legislation to a full Senate vote if this threshold is met. Yet three holdouts – Senators Kyrsten Sinema (D-AZ), Mark Kelly (D-AZ), and Mark Warner (D-VA) – aren’t budging. 

There are two other ways, however, the bill could be implemented incrementally: through the $3.5 trillion budget reconciliation or by regulatory fiat. 

Budget reconciliation is a partisan route to passing legislation as it only requires that 50 senators approve of a budget-related measure. To be included, provisions must have a fiscal impact, such as expenditures or revenue. During recent reconciliation talks, Democratic lawmakers hinted at adding a provision of the PRO Act relating to monetary penalties for employers who allegedly deny workers union rights. Why? They believe this provision would have a chance of “passing muster” with the Senate parliamentarian responsible for approving budget-related aspects. 

As Bloomberg Law notes: 

That proposal would amount to a major change to the National Labor Relations Act—and a huge win for unions—if it were to become law. It would allow the government for the first time to fine employers for violating workers’ rights.

Alternatively, if Congressional Democrats exhaust all legislative options to pass the bill, the White House could direct the Labor Department to enact it through regulations. 

Secretary Marty Walsh supports this labor overhaul. So does his potential underling, David Weil—a foe to freelancers and franchisees—who is vying for his old job as DOL’s Wage and Hour Division Administrator. If confirmed, he’d undoubtedly become the PRO Act’s chief enforcer in the agency. 

The Future is Freelance

Americans continue to exchange traditional work arrangements for flexible gigs—a trend worth celebrating. 

According to Upwork’s 2020 Freelance Forward report, 59 million Americans—or 36 percent of the U.S. workforce—engage in some form of flexible work as independent contractors, moonlighters, part-time or gig workers. And that number is expected to grow. Why? Union workforce is on the decline, with only 10.8 percent of the U.S. workforce belonging to unions.

Hence there is urgency to give organized labor an artificial boost to build up their infrastructure while destroying 59 million flexible worker livelihoods. A recent Institute for the American Worker report found Big Labor and their Congressional backers will financially benefit from an additional “$3 billion per election cycle” for political activities and lobbying if the PRO Act were to pass.

Working Women Want Choice in the Workplace

Women now comprise 46 percent of the freelancer economy. 

Liya Palagashvili, senior research fellow at Mercatus Center, wrote in Fortune Magazine that “women self-select into independent work roles where greater autonomy defines the work, where the role allows for greater freedom to make decisions and structure activities, and where the workweeks are shorter.”

According to a 2019 Internal Revenue Service (IRS) report, women were the largest driving force behind the growth of independent contractors (IC) in the U.S.

“Approximately 55 percent of the growth in independent contracting from 2001 to 2016 is attributable to the increase in female ICs,” the report explained.

According to Hyperwallet’s “The Future of Gig Work is Female” study, 61 percent of respondents want to do freelancing full-time, citing a greater need for flexibility. That same study found 86% of female gig workers “believe gig work offers the opportunity to make equal pay to their male counterparts.”

Hyperwallet also revealed other draws to freelancing include opportunities for women to exert greater control over total earning and more personal time. The PRO Act would seriously undercut women’s gains in the workforce and set them back.

As IWF Senior Policy Analyst Kesley Bolar recently noted in The Hill, “By reducing women’s ability to have a flexible career and schedule work around school, doctors’ appointments, and other priorities, the PRO Act could force millions of women into an all-or-nothing choice.”

A new Forbes Tates poll found growing bipartisan opposition to key provisions of the PRO Act as it’s revealed to constrict and limit choice in employment options.

As a freelance media strategist and writer, I and millions of other working women will be rendered powerless should the PRO Act become law. It’ll destroy our livelihoods and set us back.

My labor, my choice.