In March, the U.S. House of Representatives passed the Protecting the Right to Organize Act, or the PRO Act. The bill is now with the U.S. Senate and has been referred to the Senate’s Committee on Health, Education, Labor, and Pensions for review. With all the focus on the Biden administration’s infrastructure bill, the PRO Act hasn’t been getting too much attention. However, if passed, the PRO Act would drastically change the relationship between employers and unions by expanding protections related to employees’ rights to organize and collectively bargain in the workplace. It would be the biggest change in labor law in decades.
As currently written, the PRO Act opens the door to corporate officer liability for companies and executives that violate workers’ rights under the National Labor Relations Act (NLRA), which handles workers’ rights to form, join, or assist unions and “engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection.” The corporate officer liability is particularly concerning because it opens “director or officers” of employers to the same civil penalties of up to $50,000 for first-time violations. That fine could reach up to $100,000 for repeat violations if it’s found that “any director or officer of the employer who directed or committed the violation, had established a policy that led to such a violation, or had actual or constructive knowledge of and the authority to prevent the violation and failed to prevent the violation.”
The PRO Act would also expand the definition of “employee” to increase the number of workers eligible for union membership and limit the workers considered “independent contractors.” The PRO Act would codify the “ABC test,” currently used by California, to determine whether workers are employees or independent contractors. Under the ABC test, a worker would be considered an employee, and not an independent contractor, unless the employer satisfies all three of the following conditions (A, B, and C):
- A. The individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact
- B. The service is performed outside the usual course of the business of the employer; and
- C. The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.
This new definition of “employee” would make it much more difficult to classify a worker as an independent contractor under the NLRA.
Some other changes the PRO Act would bring to existing labor law include:
- Eliminates various right-to-work protections currently established in 27 states, such as prohibiting employees from being compelled to pay union dues or fees as a condition of their employment.
- Legalizes secondary strikes and boycotts against third-party employers and contractors, currently forbidden by the NLRA.
- Prohibits employers from permanently replacing striking workers with non-union labor.
- Dissuades employers from obtaining legal advice on employee rights under the NLRA by requiring employers to report any arrangement, including an engagement with a law firm, that directly or indirectly attempts to persuade employees not to organize.
In its current form, the PRO Act includes several other sweeping changes to current labor law. With the current focus on infrastructure, it’s not expected that the PRO Act will be voted on and pass the U.S. Senate. However, it’s a bill roofing contractors should be keeping an eye on since it has the potential to drastically change the relationship between employers, employees, and unions.
