H.R. 842, the Protecting the Right to Organize Act of 2021 (PRO Act)
NCRA Government Relations would like to raise awareness concerning federal legislation that was introduced on Feb. 4, 2021, by Rep. Bobby Scott (VA-3). The bill, H.R. 842, the Protecting the Right to Organize Act of 2021 (PRO Act), seeks to amend the National Labor Relations Act (NLRA) by including provisions that attempt to strengthen workers’ rights to engage in protected activities and seek to improve rights concerning union organizing and collective bargaining. However, the pertinent provision of the bill, as it relates to freelance reporters, captioners, legal videographers, and associated professionals, concerns an amendment to the federal definition of “employee” within the NLRA.
Sec. 101(b)(A)-(C) of the PRO Act proposes that “employee” be redefined as “an individual performing any service shall be considered an employee . . . unless: (A) the individual is free from control and direction in the performance of the service; (B) the service is performed outside of the usual course of 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 involved in the service performed.” In summary, the definition, if implemented, would classify freelancers as employees, unless they can satisfy provisions (A), (B), and (C).
What this means for freelancers and what you can do
It is NCRA Government Relations’ interpretation that if the PRO Act is enacted and the proposed definition of employee is enforced, freelancers will likely satisfy the exceptions and will be considered independent contractors rather than employees. Further, it should be noted that the bill likely seeks to redefine the term employee to protect individuals working for rideshare companies, who are not necessarily considered a part of an “established trade, occupation, or profession.” However, despite the protections that the PRO Act seeks to enforce and despite freelance reporters, captioners, legal videographers, and associated professionals likely having a strong argument for independent contractor status under the proposed definition, NCRA opposes Congress’s attempt to amend the federal definition of employee.
NCRA Government Relations has publicly urged members of Congress to oppose the PRO Act. We are encouraging members to contact your elected members of Congress via phone, email, mail, or social media to fight this legislation. We drafted a template letter, similar to the one that NCRA sent to Congress, that you can email or mail to your elected representative. Visit here to find your representative’s contact information.
History of the bill and its likelihood of passage
It should be noted that this same piece of legislation, the Protecting the Right to Organize Act of 2019 (PRO Act), was also introduced in 2019 and passed in the House of Representatives but failed in the Senate in 2020. The current PRO Act was re-introduced on Feb. 4 and was debated in a House Committee on Rules hearing on March 8. The bill will likely be considered for a vote in the House soon. For reference, the website GovTrack.us, which tracks federal legislation and provides statistics about the likelihood of a bill’s passage, currently estimates that the PRO Act of 2021 has an 8 percent chance of being enacted. However, despite this estimate, NCRA Government Relations will continue to oppose the PRO Act, will continue to track this legislation, and will update our membership as to any developments. Lastly, if the bill is voted on and passes in the House of Representatives, we will be urging NCRA members to also forward our template letter to their U.S. senators. For more information or questions about the PRO Act, please contact NCRA’s Director of Government Relations Jocelynn Moore at firstname.lastname@example.org.