The Fight for the Right to Organize

“THE PRO ACT is a recipe for workplace harassment and intimidation,” an ad on Hulu blares. “Tell Congress to vote NO.” The video, which pans over a racially diverse mix of workers in hard hats and goggles, might be easy to mistake for a pro-worker spot. But it’s paid for by the Associated General Contractors of America, a business interest group that is fighting against one of the most pro-labor pieces of legislation in decades. 

The Protecting the Right to Organize Act, which is making its way through Congress right now, would be transformative—forbidding employer interference in union elections, creating financial penalties for union-busting, and doing away with right-to-work laws, which undercut unions by forbidding them to require workers to pay dues. Perhaps its most quietly revolutionary move would be to reclassify gig workers and independent contractors as employees for the purposes of unionizing, thus giving them the right to collectively bargain—a development with the potential to expand the ranks of organized labor, and extend protections to workers on the fringe of the economy. Though the PRO Act passed the House in March, the odds remain stacked against its enactment: While President Biden included the bill in his infrastructure package and is calling on Congress to pass it, it’s unlikely to make it through the Senate unless Democrats abolish the filibuster. 

The corporate right, unsurprisingly, opposes the bill. More than 150 trade associations, including the US Chamber of Commerce, the nation’s largest business lobbying group, sent a letter to Congress in March pressuring members to vote it down. Misinformation is one of industry’s biggest tools, with the opposition warning of the PRO Act’s “radical agenda” and disparaging the bill in the name of “worker privacy.” Much of this messaging seeks to sow fear about the bill’s impact on contingent workers. Opponents claim that the bill could “kill” the careers of independent contractors by forcing businesses to reclassify them as employees—a doomsday scenario with no basis in the text itself, but one that has gained purchase with an outspoken cohort of freelancers who are vocally opposing the bill on social media under the hashtag #FightForFreelancers. (As a member of the Freelance Solidarity Project, a union of freelance media workers whose organizing efforts would be strengthened by the PRO Act, I helped release a statement seeking to cut through this strain of misinformation about the bill.)

This will be the second time in as many years that a battle over a novel piece of labor legislation has brought up the question of what the bill would mean for the contingent workers who comprise a growing portion of the economy. Last November, Uber, Lyft, DoorDash, Instacart, and Postmates staged a coordinated campaign to override Assembly Bill 5, a California law passed the previous year that reclassified rideshare drivers from independent contractors into employees of the gig companies, granting the workers a raft of employment protections—including health benefits and the state minimum wage—in the process. Seeking to render the law ineffectual, the companies poured a historic $200 million into a campaign to pass Proposition 22, a California ballot measure that cemented the drivers’ non-employee status. 

During the push for Prop 22, gig companies bombarded California voters with ads claiming that the measure would in fact benefit drivers. Responding to increasing public sympathy with drivers, the campaign went out of its way to depict the resolutely anti-worker proposition as being on the side of labor: Many Californians received mailers falsely labeled as “Progressive Voter Guides” designed to look as if they were affiliated with left-leaning politicians like Bernie Sanders, while Yes on Prop 22 ads featured people of color and anti-racist language. Many people who backed the measure did indeed believe they were voting for a pro-labor policy; according to one post-election survey, 40% of those who voted yes thought they were ensuring livable wages for rideshare drivers. Unfortunately, this wasn’t true. In reality, as labor economists at the University of California, Berkeley predicted in a 2019 study, Prop 22 effectively codified a minimum wage as low as $5.64. Since the measure passed, this has been the reality for gig workers in the state, with some estimating that they make as little as $5 per hour. “I think that Prop 22 was put over on the people,” Nelson Lichtenstein, a labor historian at the University of California-Santa Barbara, said. “Most people who voted for it thought that it was more progressive than it was.” 

As the fight over the PRO Act takes shape, its emerging dynamics are mirroring the ones that contributed to labor’s defeat in California. As with Prop 22, where the gig companies outspent their opponents ten-to-one, labor is sure to be outmatched financially—raising the question of whether the bill’s supporters can craft a message sharp enough to cut through the employer-backed onslaught. (To cite just one example of the way corporate campaigns are adopting progressive camouflage, a new tech industry coalition backed by companies like Amazon and Uber has dubbed itself the “Chamber of Progress.”) “The companies are very, very effective at PR,” said Vanessa Bain, an Instacart shopper and co-founder of the organizing group Gig Workers Collective, which opposed Prop 22. “I think that the only real remedy or antidote to that is inoculating workers with real information and helping them understand what’s at stake.” 

If it is to be successful, that antidote will have to clarify the complicated issue of worker misclassification. For organized labor, this may prove to be an issue of existential importance. Union membership has been on the decline for decades; 27% of workers belonged to a union in 1979, while only 11.6% did in 2019. The PRO Act could help revive a moribund labor movement, not only by introducing strong protections for unions, but also by permitting millions of people to join them by reclassifying contractors as employees for the purposes of organizing. Though the act would change worker classification only as it applies to unionization, other legal fights on the horizon will turn on the issue of employment status in a broader sense: Uber’s CEO has made it clear that the company will pursue Prop 22 copycat legislation across the country, seeking to enshrine its practice of worker misclassification in law. For workers at companies that have made misclassification part of their business model—construction workers forced to become “owners” of limited liability companies, rideshare drivers at the whims of an app’s algorithm—winning employee status is the clearest route to vastly improved labor conditions, from health benefits to unemployment insurance. The challenge for the labor movement is that its weakness has rendered most Americans unfamiliar with the way labor and employment law shapes their experiences as workers—and vulnerable to misinformation about how they can respond.   

“When we have our conversations with non-union workers, workers who don’t have access to collective bargaining, they don’t even realize they’re being forced into worker misclassification. The industry adopted it and they think this is the way it is,” Jim Williams, vice president and director of organizing at IUPAT, a union of construction workers, said. To broach the way those laws shape their experiences in their own workplaces, “It’s a deeper educational conversation that’s taking place.” 

UBER AND LYFT’S CURRENT BATTLE to keep their workers classified as independent contractors is part of a long history of companies carving workers out of employment protections to maximize their own profits and prevent unionization. In the 1930s, for example, Southern plantation owners ensured that their mainly Black workforce of agricultural and domestic workers was excluded from New Deal labor law protections, resulting in persistently low wages and poor working conditions for those workers nearly a century later. Veena Dubal, who studies precarious forms of work as a professor at UC Hastings law school, compared this historical compromise made with Southern industrialists—which instated a racialized wage code in all but name—to the framework that the gig companies enacted with Prop 22, which created a “third category” of worker classification. Drivers were carved out of employee protections in exchange for paltry improvements on their original status as contractors, including a minimal health care subsidy and a set rate slightly higher than the state’s minimum wage (though this only applies to “active hours” spent with or en route to a passenger). Dubal pointed out that this framework has resulted in the exclusion of a mainly minority and immigrant workforce from the basic rights of employees, essentially codifying a new racialized wage code. 

Some labor leaders have evinced resignation about the creation of this third classification for workers, arguing that they have little choice but to accede to the companies’ framework. As Josh Eidelson recently reported in Bloomberg, a number of powerful union officials from the Teamsters, SEIU, and AFL-CIO have suggested that they are open to negotiating with companies like Uber and Lyft to figure out potential compromises, arguing that their responsibility is to make gains for workers within the existing political landscape. Rome Aloise, a Teamsters official, told Bloomberg that while getting gig workers classified as employees would be ideal, “the reality is, we’re not making much progress on that.” Lyft’s president said that he’s cautiously optimistic about finding ways to work with major unions—which, as Eidelson writes, “could be one of the gig companies’ biggest coups to date.”

But other members of the labor movement I spoke to emphasized that those who would accept the third classification are in the minority, and that most organizers agree that now is not the time to compromise. Even with union membership at a historic low, union popularity has been steadily increasing among the general public since 2009, and has reached a 65% approval rating. Meanwhile, economists estimate that there was a 30% increase in employment by independent contracting between 2005 and 2015. Creative new organizing efforts within groups like Rideshare Drivers United and Gig Workers Collective—which takes place outside the bounds of established unions and beyond the reach of most legal protections—is a source of energy not reflected in official union membership numbers. Elsewhere, employees of notoriously draconian workplaces like Amazon are risking their livelihoods to try to unionize. Almost half of non-unionized workers say they would join a union if given a chance, marking a 15% increase over the last four decades. The political landscape has also shifted in labor’s favor: Joe Biden, one of the more pro-union presidents elected in recent memory, now presides over a (narrow) Democratic majority in Congress. “This is a moment to leverage,” Dubal said. “There have been more protests, strikes, wildcat strikes in the last two years than we have seen in the last two decades. It’s disheartening that that energy isn’t being mobilized, and an opportunity lost.” 

To mobilize workers whose contingent status has positioned them on the fringe of the labor movement, organizers will need to craft a coherent message about how a union can be a vehicle to change their lives. Bain, the Gig Workers Collective organizer, said that she felt there was more the labor movement could have done during the Prop 22 fight to inoculate gig workers and the general public against company messaging that positioned the third classification as a boon for struggling drivers. “A lot of workers were intimidated and confused—they didn’t understand the ballot and were being threatened by the companies that they worked for, like, ‘You could lose your job,’” Bain said. Organizers faced an uneven playing field, with Uber and Lyft sending in-app messages to both drivers and users, warning that drivers’ livelihoods would be threatened if the ballot failed. At the same time, Bain added, the campaign against Prop 22 could have hit back more effectively. Much of its messaging focused on speaking to voters in general rather than gig workers specifically—signalling a lost opportunity, she argued, to get buy-in from drivers who could have become the campaign’s best ambassadors. “There was no clear strategy for how to engage with workers, who I think were the most underutilized resource in the entire campaign,” she said. “It would have done a lot to have had workers organized, on the same page, and really understanding what the stakes are, and then having them be the people talking to constituents and voters.” 

Now, as they seek to pass the PRO Act and prevent the proliferation of Prop 22 copycat laws, labor organizers and advocates are trying to develop more strategies around education and messaging. Bain’s group, for example, has a new slate of initiatives, including writing op-eds, reaching out to worker-centered podcasters and YouTubers who cover the gig economy, and producing a short film with the Gravel Institute, a project to combat right-wing disinformation. The goal is to “hash out misconceptions and misinformation about the PRO Act, most of which originate from corporate interest campaigns,” Bain told me. Construction unions like IUPAT, which have long fought misclassification, are also pursuing conversations with both members and non-members about the PRO Act. “We see a need for mass education around labor in general,” Williams said. “We don’t educate around the issues enough, and the PRO Act is a great opportunity to have those organizing conversations around the workplace.” Regardless of whether organizers can push the PRO Act across the line, one thing has become clear: If contingent workers represent the future of work, then they’re the future of the labor movement, too.