WALTER OLSON, CATO INSTITUTE
The right direction for labor law reform is to move toward more respect for freedom of contract and a federal government retrenchment from a role in regulating union‐management relations that is nowhere contemplated for it in the Constitution. Instead, the PRO Act, passed this week by the House on a near‐party‐line vote, would put the private workplace on a forced march in precisely the wrong direction. (Details on the bill’s provisions here, here, here, and here.)
- It would trash voluntary contractual relations, including the legitimate role of independent contracting, where it would follow the disastrous path of California’s AB5 in putting a wide array of freelance jobs at risk. It would also invalidate many pre‐dispute agreements to arbitrate, and bar many employees from being given the legal status of supervisors even if they welcome that role.
- It would thrust the federal government even further into private workplace regulation through “joint employer” rules that blur and misattribute responsibility among multiple employers, a new federal power to impose a first contract when union negotiations do not result in one, and highly punitive new penalties and legal exposures, including personal liability for officers and directors.
- It even has dubious First Amendment implications, as with provisions seeking to regulate (and deter) management’s resort to legal counsel in unionization drives, and a requirement that in‐house employee forums established by a company be required to carry anti‐management messaging.
The PRO Act is regressive, looking back to a vision of labor relations that was mistaken even in its Thirties heyday. And it is a menace to liberty.
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.