Many pieces have been written about the importance of the Georgia U.S. Senate runoff, in which control of the chamber is at stake. It’s not hyperbole to say that many of our fundamental rights are in jeopardy should both Kelly Loeffler and David Perdue lose their contests, but the existential risk to every American’s right to work isn’t getting anywhere near the attention it should.
I say “right to work,” but it’s really much more than that. The ability of American corporations to innovate, to do what’s best for their shareholders AND their employees, and to earn a reward commensurate with the risk taken is facing the chopping block, along with the ability of Americans in every single state to choose how they want to work (as a contractor, an employee, a small business owner, union member or no) will be gone forever if the Democrats take the Senate.
As with many terrible ideas, California’s experience is the warning. Regular readers know that I, and other RedState contributors living in the state, have been dealing with the ramifications of our anti-contracting law, AB-5, for the past year. We’ve also reported on the national version, the PRO Act, that passed the House in 2020. Obviously that wasn’t taken up in the Senate and won’t be as long as Republicans are in control, though Joe Biden has pledged to sign it if he becomes President and the bill passed.
But that bill isn’t the only or the worst threat to the right to work. In September 2020 Sen. Patti Murray (D-WA) introduced a similar, but even worse, bill, along with Sen. Sherrod Brown (D-OH) and Rep. Rosa DeLauro (D-CT). Here are some bullet points from her bill which, make no mistake, will be passed and signed into law should Democrats take control of the Senate and the White House:
- Makes ABC test the law nationwide to determine employment status
- Forces companies to make “misclassified” contractors employees while maintaining the scheduling flexibility the person had as a contractor
- Forces companies to give employees the “right” to “flexible scheduling”
- Requires that temp workers be given the opportunity to go permanent after one year and have access to UI and disability while temp
- Establish a website listing a company’s record with labor law so “consumers can choose to support good businesses over ones that violate workers’ rights”
- Requires large corporations to “create plans to address workers’ rights violations throughout their supply chains”
- Makes franchisors responsible for labor law violations of their franchisees
- “Puts CEOs and top shareholders on the hook for workers’ right violations”
- Increases time period under which employees can sue for labor law violations
- Requires that regulations regarding “workers rights” be interpreted broadly, and that exceptions be interpreted narrowly
As you can see, this would have a devastating effect on the way we do business, and is an ambulance chaser’s wet dream. Combine this bill with the PRO Act’s proposed repeal of all state-based right to work laws, and, well, say goodbye to being the number one economy in the world, possibly forever.
In a guest op-ed RedState published on Election Day, the author asserted that Biden won’t necessarily go about making these changes through the legislative process. It’s possible that if the Democrats in the House don’t have a wide enough majority, the PRO Act won’t get through this session – because the Squad won’t deem it radical enough.
Republicans and conservative independents in Georgia who are considering not voting in January should read this paragraph from that op-ed; I’ve made one edit, in bold:
Those who enjoy the convenience and flexibility of being an independent contractor should think very carefully about how they will be voting [in January. If Democrats take the Senate, they] and the Democrats in Congress intend to make the ABC worker classification test (made famous by the California Supreme Court in Dynamex Operations West v. Superior Court and California’s AB 5) the default standard under federal law. Adopting the ABC Test at the federal level would have drastic consequences for a large number of industries and professions, and would likely result in hundreds of thousands, if not millions, of job losses across the nation for those employed as independent contractors. This is what happened once California passed AB 5 because that was what the legislation was specifically designed to do.
Here are the non-legislative options, again from the guest op-ed:
The first way would be to simply issue an executive order that would direct all relevant federal agencies such as the Department of Labor, the Internal Revenue Service, and the Social Security Administration, to adopt the ABC test as the standard for determining whether or not a worker should be classified as an independent contractor.
Now, clearly if Biden issued an executive order, that could be undone by the next president. But how many lives and livelihoods would be ruined in the meantime? Hundreds of thousands of people in California will testify that you don’t want to take that chance.
If he doesn’t want to issue an executive order, here’s option number two:
Biden could also initiate the rulemaking process and have the ABC Test formally adopted as a federal regulation. This process would be more time-consuming and complex, but it would still prove useful to the Democrats, insofar as it would make the test relatively permanent as an established federal rule.
The more time-consuming and complex the better for the opposition party, meaning Republicans and anyone who doesn’t want socialistic, totalitarian control over their lives exercised by people such as Alexandria Ocasio-Cortez. Unfortunately, the complexity and relative obscurity of the rulemaking process – and the determination of the mainstream media to keep it that way – would pose a formidable challenge to the opposition party. But, it’s better to find ways to drag that process out through what would hopefully be a one-term presidency than to have millions suffer through the ramifications of an executive order.
Of course, there’s always the judicial route.
Lastly, Biden and the Democrats could bring about the adoption of the ABC Test nationwide through the selection of federal judges who are more inclined to the claimed merits of the ABC test. The question of who constitutes an employee versus an independent contractor is one that the Supreme Court has taken up before, so it is not implausible that it could come to them again, especially if one or more lower circuits adopt the ABC Test.
This is absolutely not implausible given the number of states looking at duplicating California’s idiocy.
Oh, and guess what? Biden has already named one of the California judges involved in Dynamex as one of his SCOTUS picks.
California Supreme Court Justice Leondra Kruger, who voted to adopt the ABC Test in Dynamex, has already been identified as a leading candidate for the United States Supreme Court in light of Biden’s promise to nominate an African-American woman. Her colleague Goodwin Liu, who also voted in favor of adopting the ABC Test in Dynamex, has also previously been nominated for appointment to the federal bench.
It doesn’t matter what President Trump’s team does or doesn’t do in the next 29 days or so in Georgia or anywhere else. It doesn’t matter what the Republican party does, or if you think Kelly Loeffler or Doug Perdue are fighting hard enough for Donald Trump – especially if you don’t live in Georgia. Every person who values the freedom to work as they wish to put food on their table and a roof over their head needs to encourage every Republican and conservative in Georgia to turn out to the polls on January 5. If you have a few dollars to donate to the NRSC, you should also do that. If you have time to do get-out-the-vote calls and texts, you should do that. Your freedom to provide for your family is literally at stake.