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.
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.