September 19, 2021

Volume XI, Number 262

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Once Again, the House Passes “Protect the Right to Organize Act,” Sending Bill to Senate

As we recently foreshadowed, given the slim Democratic margins in the House and Senate, and a Democratic President, there is the potential for the most significant amendments to the National Labor Relations Act (“NLRA” or “Act”) in its eighty-six (86) year history.  On Tuesday night, March 9, 2021, the U.S. House of Representatives took the first step, by voting 225-206 to pass the Protect the Right to Organize Act (“PRO Act”).

This is not the first time the House as passed a version of the PRO Act; just last year around this time, the House did the same.  The key difference is that Democrats now have slim control of the U.S. Senate, although the bill faces steep odds of passage given that it is unlikely to garner 60 votes to avoid a filibuster.  The PRO Act likely has the support of President Biden, but it is uncertain whether the bill will ever reach the President’s desk.

Substantively, the PRO Act would amend the National Labor Relations Act and constitute the most significant overhaul of federal labor law in decades, strengthening workers’ rights, including their ability to unionize.

For instance, the PRO Act would give the NLRB power to fine companies that retaliate against organizing workers and require arbitration when unionized workers and employers cannot reach agreement on contracts. Other changes include: strengthening workers’ right to strike, overriding state “right to work” laws which allow employees to forgo paying dues in unionized workplaces, and permitting employees to hold union elections off of company premises and use mail or electronic ballots.

Additionally, the PRO Act addresses the so-called “gig” economy by lowering the bar for independent contractors to prove they are “employees” under the Act.  The legislation adopts California’s “ABC test” for independent contractor test, which is generally considered a more rigid test for employers to satisfy in order to classify workers as independent contractors rather than employees.

We will, of course, continue to monitor developments and keep you posted.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 69
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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

310-284-5640
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Eric D. Novak Labor & Employment Proskauer Rose New Orleans, LA
Associate

Eric Novak is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Eric received his J.D. from Tulane Law School, where he was a recipient of the Jackson-Ryan Pro Bono Advocate Award and a member of the American Inn of Court, Tulane Law Chapter. While in law school, he served as a judicial extern to the Honorable James L. Dennis at the United States Court of Appeals for the Fifth Circuit and the Honorable Sarah S. Vance and the Honorable Nannette Jolivette Brown, both at the United States District Court for the...

504.310.2072
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