The union election underway at an Amazon fulfillment center in Bessemer, Alabama, has caught national attention because of how significant a win would be for workers in the South and across the country. Even President Biden has weighed in on the importance of unions, proclaiming in a new video that workers should have a free choice to organize without interference or threats from their employer—a presidential endorsement that is without precedent in our lifetimes. This week, the House of Representatives is scheduled to debate and presumably pass comprehensive legislation—the Protecting the Right to Organize (PRO) Act—to strengthen workers’ ability to join together and form unions to negotiate for better pay, safety protections, and fairness on the job.

This newfound attention to the importance of workers having collective power to bargain with their employers is welcome, but it is long overdue—more than 50 years overdue.

The fact is, Amazon is using tactics to fight its workers in Bessemer, Alabama—thinly veiled threats, mandatory meetings in which management rails against the union, hiring third-party professional union busters—that are standard fare in the employer playbook, and have been for decades. Employers fully realize and take advantage of fundamental, structural weaknesses in our federal labor law that is supposed to protect and promote workers’ freedom to organize unions.

We recently co-authored a paper that shows, by the late 1960s and early 1970s, employers had learned how to exploit the weaknesses in the National Labor Relations Act to block union organizing. Employers realized the law has no teeth—it literally has no monetary penalties against employers who illegally fire union activists or otherwise interfere with workers’ rights. Under the guise of “free speech,” employers are allowed to hold one-sided “captive audience” meetings, where management criticizes and lobbies against forming a union, often predicting layoffs and strikes if workers unionize. Yet the union isn’t allowed in the room, and companies frequently forbid workers from speaking up or exclude pro-union workers from the meeting. Employers routinely bend and break the law. A recent Economic Policy Institute report found that in four out of 10 organizing efforts, workers have to file charges to try to stop their bosses’ illegal activity. In up to a third of elections, employers are charged with illegally firing union supporters.

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Another 1.2 million people applied for unemployment insurance (UI) benefits last week, the last week of February. This included 745,000 people who applied for regular state UI and 437,000 who applied for Pandemic Unemployment Assistance (PUA)—the federal program for workers who are not eligible for regular unemployment insurance, like gig workers.

The 1.2 million who applied for UI last week was roughly the same as the prior week (an increase of 18,000). The four-week moving average of total initial claims was unchanged.

Last week was the 50th straight week total initial claims were greater than the worst week of the Great Recession. (If that comparison is restricted to regular state claims—because we didn’t have PUA in the Great Recession—initial claims last week would have been higher than the sixth-worst week of the Great Recession.)

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On Friday, the Bureau of Labor Statistics (BLS) will release its latest jobs report on the state of the labor market for February 2021, exactly one year since the labor market peak before the pandemic recession hit. Overall, the labor market is down 9.9 million jobs since February 2020. And if we count how many jobs might have been created if the recession had not hit—a more appropriate counterfactual for the current hole we are in might be average job growth over the 12 months before the recession (202,000)—we are now short 12.1 million jobs since February 2020.

In this jobs day preview post, I remind readers which sectors are still experiencing the greatest shortfalls in jobs, which demographic groups have been hardest hit, and which metrics we should continue to ignore in this unusual recession.

Leisure and hospitality workers remain the hardest hit in the pandemic recession, with a 3.9 million job shortfall since February 2020 (as shown in Figure A). These losses are particularly devastating for leisure and hospitality workers and their families because they are among the lowest-paid workers in the U.S. economy.

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The recent United Kingdom Supreme Court ruling that Uber drivers are employees, and not entrepreneurs or independent contractors, is noteworthy for many reasons. One is that the underlying Employment Tribunal judgment that it affirmed provides a deep dive into the realities of Uber driving that obliterates the many myths Uber tells about its employment arrangements—and does so in a joyful, humorous way. It is a must read.

A second reason is that the ruling points to the need for two critical items that Tanya Goldman and David Weil proposed to combat misclassification of workers as independent contractors. First, judging whether a worker is an employee or not should not be limited to the issue of who “controls” the work, an analysis that is too easily manipulated in order to get a wrong result. Rather, one should include an analysis of whether the worker has a true opportunity to be an entrepreneur—actually build a business and not just the limited freedom of choosing their hours and work location.

In addition, Uber’s response to the ruling was—predictably—that it has already changed its terms, so the ruling no longer applies. But with these changes, drivers are still denied employment status. As long as the employer-determined status quo remains—and until endless court cases and appeals are exhausted—then the workers will never really be able to secure their rights through court challenges. To change this, Goldman and Weil propose “there should be a presumption of an employment relationship the putative employer must rebut.” Let the employer prove someone is a contractor, and until the employer has done so the worker has full employment rights (right to a union, to be paid minimum wage, etc.) and access to social insurance (unemployment insurance, workers’ compensation, paid sick days, etc.).

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When it was passed in 1935, the National Labor Relations Act declared that its purpose was to promote the practice of collective bargaining, where workers and their union sit down with their employer to negotiate over wages, safety, fairness, and other important issues. But over time, this promise has become hollow because weaknesses in the law have been exploited by employers and the courts to undermine workers’ bargaining power. Here are six ways the Protecting the Right to Organize (PRO) Act helps to level the playing field and restore workers’ bargaining power:

1. The PRO Act has a process for reaching a first collective bargaining agreement. When workers first form a union, too often employers drag out the bargaining process and avoid reaching an initial agreement, because there are no monetary penalties in the law for bad faith bargaining. A year after forming their union, more than half of all workers do not yet have an initial bargaining agreement with their employer. This leads to worker frustration, which employers exploit to undermine the new union. The PRO Act addresses this problem by establishing a mediation and arbitration process for reaching an initial agreement.
2. The PRO Act requires employers to continue bargaining instead of taking unilateral action. Current law gives employers too much power to force its position on workers by unilaterally declaring that the parties have reached an impasse in bargaining and then either locking out workers—preventing them from working and getting paid—or implementing the employer’s proposals. This power, either alone or combined with the restrictions on workers’ ability to strike or put other economic pressure on the employer, puts employers in the driver’s seat in bargaining and greatly undermines workers’ bargaining power. To address this problem, the PRO Act prohibits employers from declaring impasse and locking out workers—a so-called “offensive lockout.” And the PRO Act requires employers to maintain the status quo on wages and benefits during bargaining—no more unilateral changes to put pressure on workers to cave in to the employer’s demands.
3. The PRO Act gets the economic players to the bargaining table. Under current law, staffing firms, contractors, temporary agencies, and other employers try to evade their responsibility to bargain with workers and their union even when they have power over workers’ health and safety, schedules, wages, and other key issues. This leaves workers without the real economic players at the bargaining table. The PRO Act fixes this problem by adopting a strong joint-employer standard that will bring employers with power over wages or working conditions to the bargaining table.
4. The PRO Act eliminates the ban on so-called “secondary” activity. In order to win a wage increase, a voice on new technology, safety improvements, or other bargaining priorities, workers need leverage to put economic pressure on their employer to accept their demands. But current law robs workers of their leverage in many ways, including a prohibition on so-called “secondary” activity that was enacted by Congress in 1947. In fact, current law instructs the National Labor Relations Board (NLRB) to give top priority to shutting down so-called “secondary” activity. These cases are given even higher priority than cases alleging that employers have illegally fired union activists, and statistics show this has in fact been the case. For example, in the first 12 years after the restriction on secondary activity was first implemented, the number of injunction proceedings against unions for engaging in illegal secondary activity skyrocketed by 1,188%, while virtually no injunction proceedings were brought against employers for violating workers’ rights. This restriction on secondary activity forbids workers from picketing or otherwise putting pressure on so-called “neutral” companies other than their employer, even if those companies could influence their employer’s practices by, for example, withholding purchases until workers and their employer reach a collective bargaining agreement. The restriction has been interpreted so broadly as to prohibit janitors from picketing a building management company over sexual harassment by its janitorial subcontractor. The Trump NLRB General Counsel unsuccessfully tried to argue that floating an inflatable Scabby the Rat balloon at a labor protest was illegal secondary activity, even though courts have consistently said such protests are protected by the First Amendment. Given the prevalence of subcontracting and the interrelated nature of business relationships, the ban on secondary activity does not reflect the realities of today’s business structures. It deprives workers of an important tool in the bargaining process and unfairly tips the power balance to employers. To correct this imbalance, the PRO Act repeals the ban on secondary activity.
5. The PRO Act prohibits employers from permanently replacing strikers. Workers’ ultimate leverage in bargaining is to withhold their labor—in other words, to strike. The law technically protects workers from being fired when they go on a lawful strike, but this right has been gutted by a 1938 decision by the U.S. Supreme Court that stated that employers can permanently replace, i.e., terminate, workers who are on strike over economic issues. Despite a slight increase in strike activity last year, the number of strikes continues to be at a historic low in part because of this weakness in the law. The PRO Act restores the right to strike by prohibiting employers from permanently replacing economic strikers.
6. The PRO Act overrides state “right-to-work” laws that weaken unions. So-called right-to-work laws have nothing to do with getting or keeping a job—they are about weakening workers’ collective voice on the job. Under the law, unions are required to represent all workers protected by the collective bargaining agreement, but so-called right-to-work laws prohibit unions and employers from voluntarily agreeing that all workers covered and protected by the agreement should share in the costs of union representation through union dues or fees. This creates a “free rider” problem, where workers get the benefits of unionization but do not contribute toward the costs, creating a financial drain on unions. The PRO Act overrides state right-to-work laws and allows unions and employers to negotiate fair share agreements whereby all workers covered by the collective bargaining agreement share in the cost of representation.

Read EPI’S fact sheet on why workers need the PRO Act.

Another 1.2 million people applied for unemployment insurance (UI) benefits last week, including 730,000 people who applied for regular state UI and 451,000 who applied for Pandemic Unemployment Assistance (PUA)—the federal program for workers who are not eligible for regular unemployment insurance, like gig workers.

The 1.2 million who applied for UI last week was a decrease of 172,000 from the prior week, reversing last week’s increase of 164,000. The four-week moving average of total initial claims was roughly unchanged (a slight decline of 8,500).

Last week was the 49th straight week total initial claims were greater than the worst week of the Great Recession. (If that comparison is restricted to regular state claims—because we didn’t have PUA in the Great Recession—initial claims last week were roughly the same as the ninth-worst week of the Great Recession.)

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