The Pandemic Changed How We Work. It’s Time for Labor Laws to Change, Too.

The way we work has always been evolving, but the COVID-19 pandemic accelerated change. Progress that might otherwise have taken over a decade to achieve was crammed into a single year. With the rapid pace of change, it is critical that labor laws keep up with the times.

Fortunately, a group of lawmakers have introduced the Employee Rights Act of 2022—a much-needed update to our nation’s labor laws. Consider all the game-changing factors that have occurred since the onset of the pandemic, which have made an update all the more necessary:

• Forced closures required businesses to adapt technology and ways of work that kept operations going in the short term and created more efficient and flexible platforms for the future.
• Job losses and an increased need for autonomy and flexibility (given school and child care closures) contributed to 12% of the workforce beginning independent work in 2020.
• Safety precautions caused an uptick in the demand for contract-based services offered on gig-economy platforms, expanding opportunities for individuals across all ages, stages, locations, and education levels to find work in ways that work best for them.

Another pandemic-related phenomenon has been record-high quit rates, demonstrating the reality that the average worker will change jobs a dozen times throughout their career, opposed to working for a single company throughout their lifetimes.

Workers have also made huge gains in wages and workplace benefits in recent years, even as the percentage of workers choosing to join unions has never been lower. That includes a 64% increase in the percent of workers with access to paid family leave over just the past five years.

Yet, most of America’s labor laws were enacted three-quarters of a century ago amidst a male-, union-, and manufacturing-dominated labor market.

That is why the Employee Rights Act of 2022 is so important. It updates labor laws for the modern era, ensuring that they protect workers’ essential rights and prioritize workers’ ability to earn a living in the ways that are best for them.

The bill is in stark contrast to liberal lawmakers’ Protecting the Right to Organize Act, which would erase decades worth of labor market progress and opportunity and force workers into unions at the expense of their autonomy, flexibility, and earnings opportunity.

For starters, the Employee Rights Act safeguards the rights of individuals who want to work for themselves instead of reporting to a boss. It does this by updating the Fair Labor Standards Act to codify the common-law definition of an “employee,” consistent with other federal and state laws and Supreme Court decisions, based on the level of control an individual maintains over their work.

The importance of preserving individuals’ rights to work for themselves cannot be understated. In 2021, 59 million Americans (36% of all workers) performed independent work and another 59 million (36%) said they are likely to freelance in the future. Many people work independently because of a need for flexibility, including 32 million (55%) of independent workers who say that they are unable to work for a traditional employer because of personal circumstances such as health issues or child care needs.

In California, where liberal lawmakers passed an extremely restrictive definition of independent contractors, tens of thousands of workers have had their livelihoods ripped out from under them as the law prevents companies from hiring them. The Protecting the Right to Organize Act would impose an even more restrictive version of California’s law across the entire nation.

The Employee Rights Act also recognizes that there are many ways to start and grow a business, and it protects alternative pathways to entrepreneurship such as the franchise business model.   

By codifying the longstanding precedent practical reality that an individual can only have one ultimate boss, the Employee Rights Act would preserve the viability of about 730,000 individual franchise operations and 8.4 million people who work for them, while keeping the door open for future entrepreneurs.

Currently 39% of female franchise owners say they would not have been able to own their business without the franchise model, yet the Protecting the Right to Organize Act would upend that model by codifying into law an Obama-era regulation that made national franchiser firms legally responsible for actions and employees of individual small business franchise owners, including when the national franchisor has no control.

That regulation was estimated to have cost franchise businesses as much as $33.3 billion annually, reduced employment by 376,000 jobs, and caused a 93% spike in lawsuits against franchises.

The Employee Rights Act also includes fundamental American protections such as freedom of speech, the right to a secret ballot election, the ability to receive a raise, and worker privacy.

The Employee Rights Act would require unions to receive workers’ consent before deducting dues money from their paychecks and using it for political purposes, extending an important protection that some states have already given to their public sector employees to private sector workers.

The Protecting the Right to Organize Act would go in the opposite direction of protecting workers’ paychecks and would undo 27 states’ right-to-work laws that prevent workers from being forced to pay union dues as a condition of employment.

The Employee Rights Act would ensure that workers have access to a secret paper ballot election when voting for or against unionization. The status quo that has resulted in unions sometimes using intimidation and coercion tactics, misinformation, and blackmail to bypass a regular secret ballot election. In contrast to the Employee Rights Act, the Protecting the Right to Organize Act would make such undemocratic tactics commonplace.

With inflation skyrocketing, workers could really use a pay raise, but union contracts typically lock employers and employees into tenure-based pay scales that ignore workers’ efforts. The Employee Rights Act would allow employers to provide compensation increases above and beyond what the union contract specifies.

Worker privacy is also increasingly important in an era when personal data has a price tag and identities can be stolen. Similar to the national “do not call” registry, the Employee Rights Act would allow individuals to opt out of having their personal information shared with unions during organizing campaigns. This would help prevent union organizers from showing up on employees’ personal property and pressuring them to vote for the union or sign a card in support of unionization.

Whereas the Protecting the Right to Organize Act seemingly aspires to regress to the 1950s workplace, the Employee Rights Act offers modern-era labor laws that provide important worker protections and help support the evolving ways we work.

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