The PRO Act and the ABC Test Updated
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  • The NLRA, Employee Misclassification and the PRO Act

    The National Labor Relations Act (NLRA) protects workers who advocate for improvements on the job or seek to organize a union, but it only extends those protections to workers classified as “employees” under a very narrow definition of that term. Workers classified as “independent contractors” are not protected by the NLRA.

    Employers often misclassify their employees as independent contractors, thereby excluding their workforce from the NLRA’s protections. This allows employers to ensure their workers will not come together to form a union and negotiate for better working conditions under the NLRA. It’s simple. The Protecting the Right to Organize (PRO) Act’s ABC test provides a clear and fair method for ensuring that employees receive the NLRA’s protections—and nothing more.

  • What does the ABC test do in the PRO Act?

    The PRO Act adopts a straightforward test to identify which workers are employees under the NLRA and which workers are independent contractors outside the coverage of the NLRA.

  • Does the PRO Act create new requirements for employers under other laws?

    No. The PRO Act only amends the NLRA, not the federal or state minimum wage laws, overtime laws, or other worker protection laws.

  • Is the ABC test new?

    No. About half the states use an ABC test under their state unemployment insurance law and a few other states use an ABC test under their state wage and hour law.

  • Does the ABC test require workers to join a union?

    No. It remains the case that before any union is formed, employees must join together and request that their employer recognize the union, and a majority of the employees must support the effort to form a union. Protecting the right of workers to form or join a union does not require workers to do so.

  • With the ABC test, will employers be required to give workers raises or new benefits that some businesses cannot afford?

    No. The ABC employee status test is just that—a test to determine who is an employee under the NLRA. If the test is applied and the workers are deemed to be independent contractors, the inquiry stops there. If the workers are found to be employees, and a majority choose to form a union, they may negotiate with their employer for better pay and better working conditions. It’s important to remember that workers who organize their workplace have no interest in their employer going out of business.