Bloomberg Law
May 13, 2021, 8:01 AM

The U.S. Employment Playbook Is Ready for an Overhaul

Angela Reddock-Wright
Angela Reddock-Wright
Reddock Law Group

Is it time to rewrite the playbook for workers in this country? Last month’s rejection of unionization by Amazon employees in Alabama forces us to reconsider how the employment game is played in this country.

Union organizers and employee advocates contend that Amazon achieved its victory through intimidation and disinformation, exerting corporate muscle to keep workers in the dark about the benefits of union membership. But the issue may be larger than who has the biggest megaphone. The Amazon vote could signal a sea change in the way work is viewed and governed in the U.S.

When President Biden took office, he faced an employment playing field far different from the pre-pandemic work landscape. Millions of workers had lost jobs and millions more worked virtually from their homes. Businesses that delivered meals, goods, and groceries had become essential services that couldn’t hire workers fast enough.

Biden Campaign Pledges

Biden pledged during his campaign to improve conditions for American workers by expanding the base of workers eligible for employment benefits, raising the minimum wage, and removing barriers to union entry across industries and professions. But the fundamental American workplace had changed long before Covid-19 came to our shores. The pandemic simply brought into stark focus more than a decade of transition.

For a growing number of workers, gig work and big-box companies—not 9 to 5 office jobs—have become the new reality. The dream of lifetime, full-time employment with a pension and golden handshake is a thing of the past as more and more workers join an evolving gig economy.

Biden recognized this to an extent when he embraced California’s AB5 classification model, which uses a rigid three-part “ABC Test” to determine worker status. The ground shifted when California voters approved Proposition 22 in November 2020, agreeing with Uber and other app-based companies that drivers are independent contractors and exempt from the ABC standard.

Although the federal minimum wage hasn’t effectively risen since 1968, and a disproportionate share of American workers struggle to make ends meet, Amazon workers indicated that they also cared about greater autonomy in the workplace.

Biden and progressives in Congress have focused their attention on providing unions and workers a seat at the bargaining table. To achieve a balanced approach, any solution must also include the voice of businesses that experienced a year of unprecedented economic upheaval.

The PRO Act

The Protecting the Right to Organize Act (PRO Act), which passed the House in March 2021, is unlikely to pass the Senate in its present form. The bill was intended to level the employment playing field by giving workers more power during disputes at work, adding penalties for retaliation against workers who organize, and extending collective-bargaining rights to hundreds of thousands of workers who currently cannot organize.

Business groups argue that the bill tilts the playing field too far the other way. The U.S. Chamber of Commerce says it “would destabilize America’s workplaces and impose a long list of dangerous changes to labor law.” Employers worry that greater employee power will result in lower profits and reduced efficiency, but some studies show that unions have no significant impacton business performance and that workers who have a voice may actually be more productive and less likely to leave.

On April 26, the White House issued an executive order on worker organizing and empowerment establishing a task force charged with identifying “executive branch policies, practices, and programs that could be used, consistent with applicable law, to promote [the] Administration’s policy of support for worker power, worker organizing, and collective bargaining.” The primary targets of the effort are areas of the country with hostile labor laws, marginalized workers including women and persons of color, hard-to-organize industries, and industries in transition.

Breaking the Stalemate

There is a way around the stalemate. Legislators—referees in this contest—should work to balance the interests of both employees/unions and employers—the players and owners in this scenario.

If the goal is to create a thriving workforce and economy, employees must have good wages, benefits, and working conditions. Equally important, the businesses that create jobs must be allowed to thrive, with incentives that encourage creativity and innovation in the workplace. Legislation must support both teams on the playing field.

The new workplace playbook must move beyond traditional categories of employee or independent contractor. Just as the Olympics opened its rosters to professional players teamed with amateurs, it’s time to create a third worker category.

After California removed Uber drivers from its employment rolls, the U.K. went in the opposite direction, classifying drivers as “workers,” not “employees,” entitled to minimum wage, holiday pay, rest breaks, and other benefits. Other countries are following suit. Uber has now proposed a hybrid model for the European Union similar to what is in place in California: minimum earnings, vehicle insurance, and a benefits fund to assist with health insurance and paid time off.

Lawmakers must look at the current playing field and commit to the same level of creative thinking around expanding traditional notions of employees versus independent contractors. To set the two up as opposites with divergent interests is counterproductive.

The new playbook must ensure protection, dignity and respect, a living wage, benefits, and good working conditions for all workers while honoring the spirit and creativity of the new on-demand economy. It must truly balance the interests of labor and business. This is the new playing field—the future of work.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Angela Reddock-Wright is founder and managing partner of the Reddock Law Group of Los Angeles and a neutral with Judicate West, a California private dispute resolution firm. She is an employment and labor law attorney, mediator, arbitrator, workplace and Title IX investigator.

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