Tim Steller's opinion: End right-to-work freeloading, but spare happy independent contractors

Arizona’s status as a “right to work” state could end.

And that’s not necessarily the most sweeping part of the bill that could transform America’s labor laws, if enough senators support it.

Democratic U.S. senators have mostly fallen in line behind the biggest change in labor laws in many decades, the Protecting the Right to Organize Act. Among them is Tucson’s own Sen. Mark Kelly, who announced his support this summer after months of questions. Still holding out: Tucson native Sen. Kyrsten Sinema, who may never support it, based on comments she made earlier this year.

The PRO Act, as it’s known, would make it easier to organize labor unions everywhere and has been passed by the U.S. House. It would penalize employers more heavily for firing employees for their union activity and eliminate “captive audience” meetings where employers discourage organizing, among many other provisions.

In Arizona and 26 other states, it would also supersede one of the bedrock principles of the states’ labor laws — the “right to work.” If the act passes, employees represented by unions would no longer be able to avoid paying dues — that is, freeloading on the bargaining of their union-member co-workers.

They could choose not to join, but if they’re represented by the union, they would still have to pay dues.

That dramatic shift alone was probably enough to make the bill a target of employer groups like the Arizona Chamber of Commerce & Industry, which is campaigning against it.

But among its many big changes, the PRO Act would also drastically reduce who can work as an independent contractor. That change, which originated as part of a California initiative, was aimed at gig workers for companies like Uber, Lyft and Door Dash.

When you think about it, though, you’ll see there are a lot of independent contractors out there. Think of fitness businesses, like gyms and yoga studios. Often, the trainers or teachers aren’t employees. They are paid by the class or session, as independent contractors, and their earnings are reported to them on IRS 1099 forms, rather than W-2s.

That kind of arrangement would likely wither if the PRO Act becomes law. That’s because the three part “ABC test” would determine whether a worker can be considered an independent contractor. Under that test, all three of these conditions must apply:

“(A) the individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;

“(B) the service is performed outside the usual course of the business of the employer; and

“(C) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”

It’s condition B that could end many independent-contracting relationships, since, for example, yoga teachers are largely going to teach for fitness centers or yoga studios, where fitness is the “usual course of the business.”

That might be a good change to counter massive corporations built on taking advantage of little people, like some of the ride-share or delivery companies.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

Ryan Kelly of the Pima Area Labor Federation told me Friday, “We see employers who clearly abuse the option of labeling what should be an employee as an independent contractor.”

But it might not be so good for little businesses and part-time practitioners who only want a loose association, not an employment relationship.

Trainers, hairstylists and others in the beauty business, along with some small subcontractors in construction, could all be forced by the ABC test to become employees. Some might like that, but for others, the looser relationship of the independent contractor is a good thing.

A longtime local landscaping contractor named Richard Springer is the person who drew my attention to these independent-contractor provisions last week. He’s worried about the repercussions, considering all the independent contractors he’s worked with over the years around Tucson.

“They live a vibrant life of self-employment. They also pay a 15.1% self-employment tax,” he said. “The American dream for a lot of people is self-employment.”

This provision, it turns out, is what Mark Kelly is still not sold on. I stopped by a Kelly press conference at Raytheon Missile Systems Friday to ask him about it. His answers were vague but still somewhat revealing:

“The things that are in the PRO Act, I support. Not all of them, I don’t think it’s perfect. I think there could be some things that could change, but I am supportive of the legislation.”

When I asked him what he opposes in the act, he said: “There is language in there right now that says what constitutes an independent contractor, and who can remain an independent contractor. That’s one of the areas of the legislation I’m concerned about, but I’m supportive of the legislation.”

The PRO Act, by the way, is unlikely to become law on its own. The parts of it that have to do with spending may be included in a reconciliation bill, which would allow it to be approved by a simple majority rather than the supermajority required by the filibuster rule.

But only 49 Democrats, including Kelly, have signaled their support. So that means another Democrat or Republican must sign on for these provisions to become law, with Vice President Kamala Harris supplying the 51st vote.

Don’t count on Sinema to ever support any part of it. In April, a pro-labor outlet called More Perfect Union released video of Sinema speaking to the Arizona Chamber and answering a question about the PRO Act.

“The way I make decisions on behalf of Arizona and for our constituents is by listening to the business leaders who will be impacted by these decisions,” Sinema said, apparently reading from notes and ignoring the perspective of employees.

She went on to suggest how they could help her shut the PRO Act down: “I would ask all the members who are joining us today to please stay involved with my office and help me by sharing information about how this would impact you and your company, so that I can go back to Senate leadership and folks on both sides of the aisle to discuss the concerns that Arizona businesses have.”

It’s too bad she isn’t on board with the end of right-to-work in Arizona. I would like to see the end of Arizona employees’ ability to freeload on union members in workplaces that have voted to organize.

But as to independent contractors, I hope we can avoid severing consensual, mutually beneficial labor relationships and focus on the abusive ones.