This past year saw significant changes in labor policy throughout the country, both good and bad. As the year comes to a close, it’s important to reflect on successes of those dedicated to worker freedom, while never losing sight of the ongoing threats to it in the year to come.
First, the good. On a state-by-state level, labor policy saw some of its most significant advancements in worker freedom since the Supreme Court issued its 2018 decision in Janus v. AFSCME.
No state stands out more than Indiana, which adopted legislation this year to better protect workers’ First Amendment rights. Senate Enrolled Act 251, signed by Gov. Eric Holcomb on April 22, requires the state to give school employees notice of their First Amendment rights to join or refuse to join a union before making their decision. To further protect employees, the law requires those that wish to have union dues deducted from their paychecks confirm their decision first. This removes schools from the troubling position of having to take a union’s word that an employee wishes to have dues withheld from his or her pay.
SEA 251 also allows school employees to leave a union and stop paying dues at any time, and thereby prevents schemes, such as abusive window policies, that try to trap school employees into union membership by giving them only brief periods to opt out. At its most basic level, the act requires that no money be taken from Indiana school employees without their knowing, voluntary, and affirmative consent.
Indiana’s adoption of SEA 251 marks the first legislative attempt to protect workers’ First Amendment rights as recognized by Janus. In that decision, the high court held that public employees must first acknowledge and waive their First Amendment rights before a union can collect payment. The court stated that “[S]uch a waiver cannot be presumed. Rather, to be effective, the waiver must be freely given and shown by ‘clear and compelling’ evidence.”
Indiana’s attorney general previously opined that this change was necessary, following the attorneys general of Alaska and Texas. And many other states have considered joining Indiana in protecting worker freedom this year.
Legislators in both Florida and Oklahoma introduced worker freedom bills that passed one legislative chamber. Legislation was also introduced in Louisiana, Kentucky, Tennessee, Montana, Pennsylvania, Missouri, and Kansas. As awareness about the need to better protect workers grows, even more states are likely to consider, and adopt, legislation that will ensure workers are able to make a free and fully informed choice about joining a union.
While state-level results have been overwhelmingly positive, the agenda of the Biden administration and congressional Democrats has been far less pro-worker and far more pro-union. Some of the many examples include policies as wide-ranging as reimposing the dues skim on home health care workers and providing preferential tax treatment for electric vehicles created in unionized factories. The biggest threat, however, can be found in a potentially disastrous piece of legislation currently being considered on Capitol Hill.
The PRO Act, a proposal consisting of little more than a grab-bag of unions’ favorite policies, has passed the U.S. House, and is currently before the Senate. If the PRO Act were to pass, it would be catastrophic for worker freedom. Some of the worst policies in the act include:
Eliminating all private sector rightto-work laws, thereby establishing a federal requirement that workers for unionized employers either join and pay a union, or lose their jobs
Adopting the “ABC test” for independent contracting, which would make it very difficult for workers to be classified as independent contractors. The estimated costs of this change could be as high as $12.1 billion
Dramatically increasing penalties for labor law violations, including punitive damages
Eliminating secret ballot elections in favor of card check, which advantages unions and subjects workers to harassment and intimidation, and
These policies are just a small sample of the problems with the PRO Act, but they highlight how damaging its passage would be for workers.
And that’s not to mention what’s happening at the executive level. The Biden administration has already rolled back changes designed to make it easy for workers to be their own boss by acting as independent contractors. And the National Labor Relations Board, which is now staffed by pro-union Biden appointees, appears poised to reenact several Obama-era policies that would significantly set back worker freedom.
These threats are real, and stopping them will be a major focus of the Mackinac Center in 2022. But we also remain committed to advancing worker freedom in Michigan and across the country. As the new year approaches, we look forward to helping more workers and policymakers see the importance of sound, worker-focused labor policy.
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