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A Resurrected PRO Act Could Pay Dividends For Big Labor This Time Around

2.8.21

As we recently forecasted, the House of Representatives has reintroduced a bill designed to radically transform the labor relations landscape, substantially tilting the playing field towards organized labor. The “Protecting the Right to Organize Act of 2021,” or PRO Act, was introduced on February 4 after an earlier version of the same legislation failed to clear the Senate last year. However, now that both houses of Congress and the White House are controlled by the Democratic party, this proposal stands closer than ever to becoming law. What do employers – both unionized and non-unionized – need to know about this startling prospect, and what can you do to help prevent it from becoming reality?

The PRO Act: A Primer

If you think you’ve heard about this proposal before, you’re not experiencing déjà vu. The same bill was passed by the House a year ago this month. But at that time, it faced a hostile Senate controlled by the G.O.P. – which kept the proposal from reaching the floor for an up-or-down vote – and a president that would have vetoed the measure in the unlikely event it reached his desk. The winds of change have shifted, however, and we now have a Senate controlled by the Democrats by the slimmest of margins and an unabashedly pro-union president who campaigned on promises to deliver for organized labor.

So what could you be in store for if this law passes? Whether you currently operate in a unionized environment or have yet to encounter a labor union, be prepared to rethink just about everything you know about the regulatory framework governing your labor relations functions. The PRO Act would make it far easier for unions to organize your workforce, grant far more power to workers protesting working conditions, and shackle unionized businesses like never before, while undermining other longstanding employment models embedded with workplaces across the country.

Radical Shift In Union Organizing

If passed, the PRO Act would radically transform the process of union organizing, tilting the balance of power towards unions to a remarkable degree by altering seven critical steps in the organizing process.

Shifting Power To Protesting Workers

The PRO Act would also take steps to further empower workers participating in workplace disputes – at the expense of their employers’ rights to manage the workplace.

Constraining Unionized Employers

Further, the proposed law would restrict the rights of unionized employers when it comes to several critical activities.

Shattering Commonplace Workplace Standards For All Employers

But the PRO Act wouldn’t just impact unionized workplaces. It would completely transform workplace law for unionized and non-union businesses alike by invalidating arrangements that have become commonplace over the last several decades.

What's Next?

It’s worth noting that although it enjoys the support of the new administration, the bill faces a number of hurdles before it becomes law – chief of which is a filibuster that threatens to block any further progress on this legislation to the extent it remains in place through the current session of Congress. Even within the Democratic side of the aisle, the bill could generate opposition from some of its own moderate members. That being said, one of the chief impediments to its passage has already been removed, and the bill could receive a friendlier reception under the current political climate.

Even if the bill ultimately stalls over the coming months, its progress bears watching, as agencies such as the NLRB and the Department of Labor (DOL) could attempt to implement some of its components through exercise of their rulemaking or decision-making authority. For example, once it returns to Democratic control later this year as expected, the NLRB could choose to revisit business-friendly joint employer and independent contractor standards established under the Trump administration. Similarly, the DOL could choose to resurrect a persuader rule that was enjoined in the late stages of the Obama administration.

Regardless of whether the bill becomes law in the short term, employers are encouraged to consult with their legal counsel to devise proactive labor relations strategies tailored to the unique aspects of their workplace cultures given this rapidly shifting regulatory environment. Look for additional resources from Fisher Phillips designed to arm employers with the tools they need to weather the labor relations storm going forward. In the meantime, you may want to express any practical concerns directly to your elected representative, before this legislation threatens to undermine the interests of businesses large and small.

Conclusion

Fisher Phillips will continue to monitor any further developments in this area as they occur, so you should ensure you are subscribed to Fisher Phillips’ alert system to gather the most up-to-date information. For guidance and support in preparing for these developments, we would encourage you to contact your Fisher Phillips attorney or any member of our Labor Relations Practice Group.


This Legal Alert provides an overview of a specific federal bill. It is not intended to be, and should not be construed as, legal advice for any particular fact situation.

 

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