The PRO Act & Potential Impact

a stack of binders sitting on top of a wooden table

In March of 2021, the U.S. House of Representatives passed the Protecting the Right to Organize Act of 2021 (PRO Act). The PRO Act is said to represent the most dramatic rewrite of federal labor laws in decades and poses significant changes and consequences for both non-union and union employees. The Bill is currently in the Senate for consideration and if passed, will strengthen the ability of unions to form and collectively bargain. 

The PRO Act brings its fair share of political controversy and, it appears to many, that organized labor has arrived and is unpacking its bags for a long-term stay. 

During his presidential campaign, Biden promised to be, “the strongest labor president you have ever had” and that, “you can be sure you’ll be hearing that word, ‘union’, plenty of times when I’m in the White House.”

Marty Walsh, former union president and Boston Mayor, was sworn in as the Secretary of Labor in March of 2021 and is the first former union official to hold office in nearly 50 years.

In April of 2021, President Biden formed a task force dedicated to strengthening workers’ ability to organize. 

Biden has also nominated two former union lawyers to the National Labor Relations Board (NLRB) and effective August 28, 2021, the Democrats will have the majority in the NLRB with a strong union hold. The NLRB is an independent federal agency responsible for enforcing the provisions of the National Labor Relations Act (NLRA). The NLRA guarantees the right of most private sector employees to organize, engage in concerted efforts to improve their wages and working conditions, make determinations on whether to have unions as their bargaining representatives, engage in collective bargaining, and/or refrain from any of these activities. 

So, the PRO Act is on the table, and we see a strong push for union footing. But what does this mean for employers?

The PRO Act encompasses more than 50 significant changes to current law and aims to overhaul the NLRA for the first time in 70 years. Here are some of the most notable changes:

· Effectively overturn state “right to work laws.” Currently there are 27 states that have legislation in place that prohibits employers and unions from entering into “fair share” agreements, in which employees are required to pay “fair share fees” to unions that represent their interests. In right to work states, employees cannot be required to pay union dues. Under the PRO Act, employers and unions could enter agreements and employees could be required to pay unions dues in unionized workplaces even if they are not members of the union. 

· Codify the ABC Test. For us Californian’s this is nothing new, however this would be implemented country wide. Under the ABC Test, a worker is presumed to be an employee unless the employer can show that all three of the outlined conditions are satisfied. This means that many more workers would potentially become employees. 

· Limit the ability of employers to contest union elections. The PRO Act would allow coercive tactics for unions that have long been held as unlawful.

· Implement steep fines for employer retaliation against organization. The PRO Act has a provision that employers would face fees ranging from $50,000.00-$100,000.00 for firing an employee that is trying to organize a workplace. 

· Employers would be prohibited from holding mandatory “captive audience” meetings. Listing these as “meetings of fear”, the PRO Act would eliminate the ability of employers to hold meetings that employees are required to attend in order to dissuade union action. 

· Increase the time in which union-employer contracts come together. The PRO Act provides a timeline for the collective bargaining process and, in the event that an agreement cannot be reached, requires timely mediation and a tripartite arbitration panel. 

· Require reclassification of employees. The PRO Act restricts the definition of “supervisor” and prevents employers from treating many frontline leaders as members of their management team. This means that many more employees would be subject to NLRA coverage and potential union representation. It also limits these individuals’ rights to exercise Section 8 free speech rights under the NLRA and communicate about unionization.

· Require changes in business structure. Under the PRO Act the NLRA would amend the joint-employer definition as one who “codetermines or shares control over the employee’s essential terms and conditions of employment.” This has the potential to impact staffing agencies with contingent workers, as well as franchise brands among others. 

· Provide employees with the right to use employer’s electronic systems for non-business reasons. The PRO Act would permit employees to use employer’s communication systems and technology to organize or engage in other protected concerted activity. 

· Eliminates mandatory arbitration agreements. Employers that have arbitration agreements signed upon hire to prevent an employee’s right to participate in a collective or class action lawsuit will need to make changes. The PRO Act prevents employers from entering these agreements with employees. 

· Union organizers would have access to employee contact information. The PRO Act will require employers to provide a voter list to the labor organization seeking to represent employees. This would include employees home addresses, work locations, shifts, job classification and, if available, cell phone and personal email addresses. 

Remember that this is the “highlight reel” of the PRO Act provisions and the potential changes to how we are currently operating could be drastic. With the Democrats solidifying their majority in the NLRB an aggressive pro-union agenda is expected that may impact both union and non-union employers. So buckle your seat belts, we are in for more change. 

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