On February 4, 2021, House Democrats reintroduced the Protecting the Right to Organize Act of 2019 (PRO Act). The sweeping labor legislation, which would return many provisions of current labor laws to their pre-1947 status, would create new claims and impose punitive penalties and strengthen a number of union and employee rights. The legislation has a checkered past: it passed in the House in early 2020, but stalled in the then Republican-controlled Senate. Now, under President Biden, who promised during his campaign to work toward the passage of certain provisions in the PRO Act, the PRO Act is taking another turn at becoming law.
The PRO Act is unabashedly pro-employee, and if passed, will radically transform the labor landscape. Among other provisions:
- Certain pro-employee NLRB decisions handed down from the Obama-appointed Board will be codified, including Browning-Ferris Industries (which expanded the joint employer rule, meaning employers would be more likely to be deemed “joint employers” with increased liability) and Purple Communications (allowing workplace email access for organizing purposes).
- The “ABC” test–which requires employers to meet strict requirements before they can classify workers as contractors instead of employees–will become the federal standard, leading to a higher likelihood that workers will be classified as employees and having tremendous implications on gig economy workers.
- All Right-to-Work laws, which prohibit employers and unions from requiring employees to join or pay fees to the union as a condition of employment, will be banned.
- “Ambush” election rules will be codified, which would drastically reduce the time period between the filing of a petition for election and the election-effectively providing employers with less time to communicate with employees about unionization.
- Employers and unions negotiating a first contract will have to engage in lengthy (and costly) binding interest arbitration for a contract with a term lasting a minimum of two years, if a first contract is not reached in 90 days.
In addition, the PRO Act would create a private cause of action for unfair labor practices outside of the NLRB’s jurisdiction; give the NLRB the right to award liquidated damages in amounts up to two times the amount of damages (on top of traditional back pay, front pay, and consequential damages) for labor law violations; make terminating an employee for engaging in strike activity an unfair labor practice; ban employers from permanently replacing strikers; legalize partial and intermittent strikes; and ban offensive lockouts (see our prior blogs here and here).
Though it has the support of unions, President Biden, Democrats and some House Republicans, it is expected to face opposition from Senate Republicans and the business lobby, who argue it would harm business. To pass during this session of Congress, the PRO Act would need the backing of 10 Republicans in the Senate–or Senate Democrats would need to end the filibuster–neither of which is reportedly likely to happen.
However, union leaders have reportedly called the unions’ approach to passage of the PRO Act a “long haul.” Though the fate of the PRO Act remains to be seen, we do not expect unions to walk away from efforts to have union-friendly reform inked into law, especially with a union-friendly president in the White House.
Follow us as we continue to follow the PRO Act. For help navigating labor and employment law developments, contact your Baker McKenzie employment attorney.