On March 9, 2021, the U.S. House of Representatives passed the Protecting the Right to Organize Act of 2021 (PRO Act) by a largely party-line vote of 225-206. One Democratic Representative voted against the bill; five Republicans voted for it. The PRO Act represents the most dramatic reform of federal labor law in decades, and would have significant consequences for both non-union and unionized employers.
The bill’s language includes provisions that would:
- Effectively overturn state right-to-work laws;
- Codify the “ABC test” for determining independent contractor or employee status under the NLRA;
- Limit employers’ ability to contest union election petitions and allow unions to engage in secondary boycotts, long held to be unlawful;
- Restrict the ability of employers to obtain labor relations advice;
- Facilitate union organizing of micro-units;
- Redefine the definition of “supervisor” to include more frontline leaders as “employees” covered by the NLRA;
- Change the definition of “joint employment,” forcing businesses to alter their structures or face liability;
- Give employees the right to utilize an employer’s electronic systems to organize and engage in protected concerted activity;
- Prohibit employers from using mandatory arbitration agreements with employees;
- Force parties into collective bargaining agreements via interest arbitration; and
- Expand penalties for violations of the NLRA.
Littler has previously published a detailed analysis of the consequences of the PRO Act, which unionized and non-union employers are encouraged to review closely.
During debate on the bill, the House adopted a series of Democratic amendments, including provisions requiring the National Labor Relations Board to develop a system for electronic voting in union organizing campaigns; strengthening whistleblower protections; clarifying that the bill’s definition of “employee” does not impact state wage and hour laws; and directing studies and reports on the impact of the bill’s test for independent contractor status, definition of joint employer, and sectoral bargaining in other countries.
The House rejected Republican amendments that would have, among other things, struck provisions in the bill codifying the “persuader” rule; overturned state right-to-work laws; and banned the use of striker replacements. The House likewise rejected a Republican attempt to amend the Labor Management Relations Act to prohibit “neutrality agreements” in organizing campaigns.
The PRO Act now moves to consideration in the U.S. Senate, where its fate is uncertain. Under current filibuster rules, a supermajority of 60 votes is required to pass the Senate and move to President Biden’s desk for signature. To date, no Senate Republican has indicated they would support the bill. There will be significant pressure on Senate Democrats to advance the legislation and calls to change the filibuster rules to allow for passage with only 50 votes. While the Senate is evenly split, it is not clear whether the bill could advance in its present form, or if moderate Democrats will make efforts to address some of the bill’s most glaring problems for employers.