On March 11, 2021, the House of Representatives passed H.R. 842. The Protecting the Right to Organize Act (“PRO Act”) would amend aspects of the National Labor Relations Act (“NLRA”) by expanding protections of employees’ rights to collectively bargain in the workplace and penalizing companies that violate those rights.

KEY PROVISIONS

  1. Redefines “employee,” “supervisor,” and “joint employer” in the NLRA to increase the number of workers eligible for union membership.
  2. Authorizes National Labor Relations Board (“NLRB”) in assessing hefty monetary penalties for companies that violate worker’s rights and establishes personal liability on directors and officers where they directed or committed the violation, established a policy leading to the violation, or had actual or constructive knowledge of the violation and failed to prevent it.
  3. Allows unions to override so-called “right to work” acts in numerous states and collect dues from those who opt out of the union.
  4. Forbids employers from interfering or influencing employees in union elections.
  5. Provides a procedure for newly certified unions to seek arbitration and mediation to settle impasses in negotiation.
  6. Legalizes “secondary” strikes and boycotts against third-party employers and contractors, currently forbidden by the NLRA.
  7. Prevents an employer from using an employee’s immigration status against them when determining terms of their employment or when seeking relief for violations of the PRO Act.
  8. Prohibits employers from permanently replacing striking workers with non-union labor.
  9. Authorizes mandatory injunctions in cases of discharge or other serious economic harm to an employee before a full investigation on the merits of the charge.
  10. Provides a private right of action to sue employers for unfair labor practices outside of NLRB jurisdiction.

SENATE CONSIDERATION The bill is likely to face a more difficult road in the Senate, where an all but certain Republican filibuster could block its passage. Democrats are exploring the budget reconciliation process as a possible avenue for provisions in the bill that have a clear budgetary impact, such as the increased penalties and fines for violations of the NLRA. This would allow at least some provisions to move through the Senate with just a simple majority. The reconciliation process can also be used to provide more funding for agency enforcement and programs aiding workers.

TAKEAWAY FOR EMPLOYERS Almost half of all non-unionized workers say they would join a union if given the opportunity. Still, less than 11% of American workers belong to a union, making this area ripe for the Biden Administration to support more pro-union changes.

Although this bill is unlikely to pass in the Senate, the changes in H.R. 842 could drastically change the relationship between employers and unions. Employers should take time to re-evaluate their labor and management relations policy to avoid the appearance of union animus in its policies and administration. Examine relationships with “joint employers” such as franchisers to determine the extent of legal exposure under the new definition and any possibility of being subject to a “secondary” strike as a third-party employer or contractor. Technical violations are subject to fines, so be sure to understand the penalties and damages scheme.

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