Last week, the U.S. House of Representatives narrowly passed the Protecting the Right to Organize (“PRO”) Act, which would make sweeping union-friendly changes to the three primary federal laws that govern private-sector labor relations: the National Labor Relations Act (“NLRA”), the Labor Management Relations Act, and the Labor-Management Reporting and Disclosure Act of 1959. The bill will now head to the Senate for a vote and, if it becomes law (which is highly unlikely to happen, as explained below), would drastically alter the landscape of traditional labor law. For example, the PRO Act would:
- Expand the definition of “employees” who are eligible to join unions to include individuals who would otherwise be considered independent contractors (for example, gig economy workers).
- Give the National Labor Relations Board (the “Board”) the right to award liquidated and consequential damages against employers in retaliatory discharge cases, in addition to assessing civil penalties. (Under current law, employees may only recover back pay.)
- Give employees the right to sue the employer in court for violations of their rights under the NLRA if the Board does not proceed with the case. Under current law, an employee’s only recourse is to file an administrative charge with the Board; if the Board decides not to pursue the case, the employee cannot do so on his or her own.
- Make it easier for unions to win elections, including by:
- Formalizing the “quickie” election rules that the Board previously implemented under the Obama administration, under which union elections occur as little as 13 days after a petition is filed;
- Prohibiting employers from requiring employees to attend meetings to discuss the pros and cons of union membership;
- Permitting unions to petition for representation of small groups of employees or “micro-units,” who may have been selected for their pro-union views; and
- Removing employers as “parties” in Board representation proceedings, such that they do not have input into whether the sought-after bargaining unit is appropriate, and where or how the election is conducted.
- Expand joint employer liability, making an employer jointly liable for another employer’s unfair labor practices merely because the joint employer had indirect control over the employees, or reserved the right to exercise such control. (In other words, employers could be liable for violations they did not actually commit.)
- Eliminate “right-to-work” laws that are currently in effect in 27 states (but not in Oregon, Washington, or California). Right-to-work laws prohibit the requirement that employees pay union dues as a condition of their employment.
The PRO Act already passed the House once in early 2020, but was never taken up by the then Republican-controlled Senate. The Senate is now split 50-50, with Democrats holding a one-vote majority in the Senate by virtue of Vice President Harris’ ability to break any ties. Nonetheless, even if all Senate Democrats vote for the bill, the PRO Act is unlikely to become law unless it is supported by 60 members of the Senate, which is doubtful at best. (To pass the PRO Act with a 51-50 majority, Senate Democrats would either need to eliminate the filibuster rule or persuade the Senate parliamentarian that the PRO Act could pass through the so-called “reconciliation” process, which applies to legislation tied closely to the federal budget. Neither is likely.) Nevertheless, we will continue to monitor the PRO Act and keep you up to date on any new developments.