Back From The Dead – Protecting The Right To Organize Act Reintroduced In The House

Vinson & Elkins LLP

Vinson & Elkins LLP

On February 4, 2021, the Protecting the Right to Organize Act (the “PRO Act”) was reintroduced by Democrats in the United States House of Representatives. If enacted, the PRO Act would dramatically transform American labor relations by giving unions much more power. However, given ongoing possibility of a Republican filibuster, there remains reason to doubt that the PRO Act’s passage is in our near future (at least as currently drafted).

Among other changes, the PRO Act would expand the number of workers covered by the National Labor Relations Act ( “NLRA”) by codifying California’s “ABC” test for independent contractor classification, narrowing the definition of “supervisor” under the NLRA, codifying the expansive Obama-era Browning-Ferris standard of joint employment, banning Right-to-Work laws, creating private causes of action and civil penalties for unfair labor practices, permitting secondary boycotts, prohibiting the permanent replacement of striking workers, and requiring interest arbitration if an employer and union cannot agree on a collective bargaining agreement.

The PRO Act could also have very notable impacts on employers in ways unrelated to union relations: namely, the prohibition of agreements with employees to individually arbitrate disputes. This provision of the PRO Act would effectively supersede the Supreme Court’s 2018 decision in Epic Systems Corp. v. Lewis, in which the Court concluded that an individual arbitration agreement containing a class-action waiver did not violate employees’ Section 7 rights under the NLRA to engage in concerted activity.

At the end of the day, these changes reflect the wish list of unions. While the president may make moves to allow the National Labor Relations Act (“NLRB”) to achieve some of these changes without the benefit of the PRO Act, an eventual Republican-majority NLRB could subsequently reverse those changes. For now — and for the next few years — it will be important for employers to be aware of what changes are implemented when, and of the impact that new legislation and NLRB guidance will have on the workplace. To that end, the PRO Act is legislation that employers should carefully monitor.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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