House Democrats passed a massive labor law reform bill this week that has the support of President Biden and top labor groups: the Protecting the Right to Organize Act, or PRO Act.
The bill previously passed the House in 2020, but the then-Republican-controlled Senate did not take up the bill. Senate Majority Leader Chuck Schumer is a supporter of the bill, but unless Senate filibuster rules are changed, at least 10 Republicans would have to support the bill in order to send the legislation to Biden’s desk — a highly unlikely scenario.
If enacted, the bill would drastically change the employment landscape and relationships between workers and employers. Here are major provisions in the sweeping legislation:
Upends ‘gig economy’ by changing independent contractor definition
The PRO Act would massively adjust which kinds of workers can be classified as 1099 independent contractors, who provide services to a company but do not receive full labor protections or legally mandated employer benefits like healthcare.
It adopts California’s “ABC” test for independent contractors. The sticking point is the “B” section, which says that a company can only hire independent contractors whose “service is performed outside the usual course of the business of the employer.” Many independent contractors directly contribute to the “usual course of business” for the employer.
Drivers for Uber and Lyft, delivery service drivers, freelance journalists and photographers, truckers, artists and graphic designers, freelance event workers, and more would be affected, with companies being required to add those individuals to their payroll rather than cutting them a check for services rendered.
Guts ‘right-to-work’ laws
Laws in 27 states prevent requiring employees from paying union dues or fees as a condition of employment, called “right-to-work” laws. Advocates of labor unions blame the laws for destroying unions, and the PRO Act essentially nullifies the laws.
If an employee benefits from a collective bargaining agreement, the PRO Act says that he or she can be required to contribute fees to a union as a cost of the union’s representation, bargaining, and contract enforcement, “notwithstanding any State or Territorial law.” Employees who decline to pay can be fired.
Makes illegal immigrants eligible for damages
A Supreme Court decision from 2002 ruled that the National Labor Relations Board did not have the ability to award back pay to a laid-off worker later found to be an illegal immigrant. The PRO Act would reverse this standard, preventing denial of relief on the basis of being an unauthorized alien.
Makes it easier to form a union
Several provisions in the PRO Act are beneficial to union organizers and hamper employers’ ability to counter union organizing. It would prohibiting employers from holding mandatory meetings to lobby against creating a union — or, as employers may say, meetings to share facts about what union representation would mean. Critics call this a “gag rule” that prevents employers from using their First Amendment rights.
It also requires employers to reach a first collective bargaining agreement in a timely manner rather than dragging the process out. It requires the employer and union to begin bargaining within 10 days of a written request, and if no agreement is reached within 90 days, either party can request a federal mediator. Employers would be barred from withdrawing recognition of a union in anticipation of an expiration of a union contract.
The law narrows the definition of “supervisor” to allow more workers to be represented by a union, requires employers to provide all names and contact information of employees within a bargaining unit, and gives unions more power in the union elections process.
Changes in favor of striking workers
The PRO Act would block employers from permanently replacing workers who participate in an economic strike, often seen as one of employers’ most effective counterweights to a strike, and meaning that workers who go on strike would be assured that their jobs would not be in danger if the PRO Act becomes law.
The law would prohibit “offensive lockouts” — the practice employers use prohibiting employees from returning to a worksite until the union accepts an employer’s negotiation offer in anticipation of a strike. The law would still allow defensive lockouts to occur after a strike.
New NRLB fines
The law allows the National Labor Relations Board to impose new civil penalties for labor violations of up to $50,000, or up to $100,000 for repeated violations, creating a fine structure that will help the board to enforce labor laws when it previously had little means of doing so.