At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.” Although he has only been in office a short time, his administration is already taking steps to honor that pledge. Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act. The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress. If enacted, the PRO Act will fundamentally reshape the American workplace.
The PRO Act will strengthen labor laws in dramatic ways by making it easier for unions to organize workers, and punishing employers who resist union organizing efforts. If passed, the PRO Act would reinvigorate traditional labor in several ways, including:
- Effectively banning state “right to work” laws, meaning unions would be allowed to collect dues from all workers who benefit from union representation, regardless of union membership;
- Codifying the “ABC test,” resulting in most independent contractors being deemed “employees” and therefore covered by the National Labor Relations Act (NLRA);
- Redefining the definition of “supervisor” to make it narrower, so that more individuals would be deemed “employees” covered by the NLRA;
- Giving employees the right to use employer-provided electronic systems (such as e-mail, computers, cell phones, and other company equipment) to organize and engage in protected concerted activity;
- Prohibiting mandatory arbitration agreements and class action waivers;
- Imposing financial penalties against employers who interfere with workers’ organizing efforts;
- Requiring mediation in initial contract negotiations if agreement is not reached within 90 days;
- Changing the definition of “joint employer” by implementing the Browning-Ferris standard, making it easier for two entities to be considered joint employers under the NLRA;
- Permitting workers to engage in secondary boycotts and preventing employers from permanently replacing strikers;
- Prohibiting employers from requiring employees to attend meetings regarding the employer’s views on unionization; and
- Codifying the Obama-era “persuader rule,” whereby employers must report payments for labor relations advice and services they receive from attorneys.
In addition to these proposed legislative changes to the NLRA, the makeup of the National Labor Relations Board (NLRB) is also likely to introduce change to US labor law. The five-member NLRB is expected to turn over to a Democratic majority in the near future, with one seat currently vacant and another to be vacated by a Republican in August 2021. Additionally, the Biden Administration fired Peter Robb, the NLRB General Counsel, whose term was set to expire on November 16, 2021, and nominated Jennifer Abruzzo to replace him. As a result, employers should expect a reversal of recent precedent-setting NLRB decisions and regulations enacted under the Trump Administration.
Employers in the US should continue to monitor the progress of the PRO Act as it inches closer toward becoming law, and contact their Reed Smith labor attorneys with any questions.