Lawmakers Reintroduce the PRO Act to Promote Union Organizing

Ballard Spahr LLP

Ballard Spahr LLP

On February 4, 2021, the Senate Committee on Health, Education, Labor and Pensions (HELP) reintroduced federal legislation designed to significantly expand the rights of workers to unionize and enhance protections to employees whose efforts to do so are impeded by employers, or who are retaliated against for engaging in protected activity. The bill, known as the Protecting the Rights to Organize (PRO) Act, is available here.

The PRO Act first passed the House in February 2020, but stalled in the Republican-controlled Senate. The bill, which would extensively amend the National Labor Relations Act (NLRA), has been reintroduced as labor supporters are focused on improving worker benefits and safety during the coronavirus pandemic, and the Biden Administration prioritizes organized labor.

In a HELP Committee press release, the PRO Act is described as legislation that “addresses growing income inequality by strengthening federal laws that protect workers’ right to join a union and negotiate for higher wages and better benefits.” The sweeping initiatives include:

  • Bolstering remedies for violations of workers’ rights by authorizing the NLRB to impose monetary penalties (up to $100,000 for violations involving employee discharge); strengthening support for workers who allege retaliation for exercising their rights, for example, by reinstating employees while their grievance is heard; and authorizing a private right of action for individuals to bring legal action in federal court for back pay (without reduction for interim earnings), front pay, consequential damages, liquidated and punitive damages, and attorneys’ fees.
  • Expanding the scope of workers protected by the NLRA by narrowing the definition of “independent contractor” and “supervisor” to ensure workers are not denied NLRA rights by being misclassified, and making misclassification a violation of the NLRA.
  • Strengthening workers’ rights to engage in organizing, bargaining and protected activities by, among other things: prohibiting employers from holding “captive audience” meetings and replacing striking workers; removing the prohibition on secondary activities; barring employers from requiring employees to waive their right to collective and class action litigation; sending first contracts to binding interest arbitration; and requiring employers to post and maintain notices to employees of their rights under the NLRA.

The HELP Committee’s fact sheet and section by section summary provide more details of the reintroduced bill. If the PRO Act becomes law in its current form, employers can expect not only a potential increase in union organizing efforts, but also an increase in unfair labor practice charges filed by non-union employees and civil suits by employees seeking the expansive remedies provided by the legislation.

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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