COMP NEWS – A significant piece of labor law legislation has been proposed in congress once again, prolonging a years-long battle concerning the power and authority of American unions.

The PRO Act has been proposed in Congress again this year. For those unfamiliar, the PRO Act, if passed, would arguably be the most significant piece of labor law legislation to become law in over 75 years. 

Widely viewed as a pro-union bill, it would, among other things:

• Legislatively codify the National Labor Relations Board (NLRB) decisions under President Obama in Browning-Ferris Industries (which relaxed the joint-employer rule); Specialty Healthcare (which made it easier for unions to establish bargaining units and “micro units” – a decision recently reaffirmed by the Biden board); and Purple Communications (which allows the use of workplace email for organizing purposes)

The legislation, which significantly strengthens the power of unions, also codifies numerous pieces of legislation at the federal level that have been independently passed in individual states. These include new rules imposing stricter requirements surrounding the classification of workers as employees or contractors.

• Codify California’s “ABC test” that imposes stricter requirements for employers to classify a worker as an independent contractor versus an employee

• Codify “ambush election rules,” which shorten the amount of time between filing for a petition for election and the actual election

• Codify the 2016 “persuader regulation” that requires labor attorneys and firms to disclose significant facts about their relationships with employers

• Ban right-to-work laws that prohibit employers and unions from requiring joining a union or paying fees as a condition of employment

• Institute a “stealth” card check that allows unions to challenge election results and get certified automatically in certain circumstances

This iteration of the PRO Act is similar to previous ones that have been proposed since 2021, with some minor changes made.

Needless to say, that’s a lot of change. This bill largely mirrors prior drafts floated in Congress, with a few minor differences: 1) the bill’s sponsors renamed the bill after the late AFL-CIO leader Richard Trumka, 2) it includes updated enforcement and enactment dates, and 3) the bill removes the provision directing the NLRB to use the National Mediation Board System as a temporary electronic voting system.

 

Given how Congress currently is constituted, the prospects of the PRO Act passing this year seem slim. Nevertheless, the fact it continues to be proposed shows it isn’t likely to fall completely by the wayside any time soon. To the extent the PRO Act – whether in its current form or some slimmed down version – becomes law, employers likely will need to rethink their labor relations strategies across the board. Stay tuned.

To read more about the Pro Act returning to Congress, click here.

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