October 21, 2021

Volume XI, Number 294

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The Protecting the Right to Organize (PRO) Act Gains Momentum

U.S. House and Senate Democrats recently reintroduced the union-friendly Protecting the Right to Organize (PRO) Act of 2021. According to its sponsors, the PRO Act “restores fairness to the economy by strengthening the federal laws that protect workers’ right to organize a union and bargain for higher wages and better benefits.” Discussing the legislation last month, House Speaker Pelosi stated that “[w]ith American workers seeing their lives and livelihoods devastated by the ongoing pandemic and economic crisis, the re-introduction of the PRO Act is more important than ever.” With President Biden in the White House and Democrats in control of the House and Senate, the PRO Act has gained new traction.

If enacted, the PRO Act would make several significant and sweeping changes to the federal labor law landscape, including but not limited to the following:

  • Joint Employer. Codifies the joint employer standard previously adopted by the National Labor Relations Board (NLRB), with two or more persons being considered employers if each such person codetermines or shares control over an employee’s essential terms and conditions of employment. In determining whether such control exists, the NLRB and courts are to consider direct control and indirect control, reserved authority to exercise such control, and control exercised in fact.

  • Employee v. Independent Contractor. Defines a person as an “employee” (and not an independent contractor) under the National Labor Relations Act (NLRA) unless (1) the individual is free from control and direction in connection with the performance of the service (both under contract and in fact), (2) the service is performed outside the usual course of the employer’s business, and (3) 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.

  • Joint, Class, and Collective Actions and Arbitration Agreements. Prohibits agreements where an employer requires an employee to waive the right to pursue joint, class, or collective claims in court, thereby banning mandatory arbitration agreements for such claims.

  • Union-Avoidance Meetings. Prohibits employers from requiring or coercing employees to attend or participate in meetings (so-called “captive audience” meetings) designed to dissuade employees from joining unions or persuade them to participate in anti-union activities.

  • Union Fees and State Right-to-Work Laws. Allows unions and employers to agree to collect union dues or fees (so-called “fair share” fees) from union members, thereby invalidating state right-to-work laws that prohibit employer-union agreements requiring employees to pay union dues or fees as a condition of employment.

  • Right to Civil Action. Grants employees a private right of action, allowing them to file actions directly in court for alleged violations of the NLRA, as opposed to being required to go to the NLRB to enforce their rights.

  • Damages and Penalties for Violations. Grants the NLRB the authority to assess damages and penalties against employers for violations of the NLRA, including back pay (without any reduction, including for an employee’s interim earnings or failure to earn interim earnings), front pay, consequential damages, liquidated damages equal to two times the amount of damages awarded, and civil monetary penalties.

Whether the PRO Act will become law remains to be seen, although it has gained new life under the current Congress. If enacted, employers (both union and non-union environments) will need to reevaluate their employment agreements, policies, and practices to ensure they are aligned with the PRO Act requirements. We will continue to monitor its progress and provide any relevant updates.

© 2021 Foley & Lardner LLPNational Law Review, Volume XI, Number 68
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About this Author

Philip B. Phillips, Foley Lardner, Automotive Industry Lawyer, Labor Rights
Partner

Philip B. Phillips is a litigation partner with Foley & Lardner LLP and chair of the firm’s Litigation Department in Detroit. He is a member of the Labor & Employment Practice and Automotive Industry Team, and also serves as the professional responsibility partner for Foley’s Detroit office. He counsels and represents business clients across the country in all aspects of labor and employment law, including FLSA wage and hour collective actions and multi-plaintiff employment litigation defense, non-competition and trade secrets matters, collective bargaining and...

313-234-7109
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