Have you Heard About the PRO Act (Protecting the Right to Organize Act)? Every Employer and Business Owner in the Country Better Start Listening.

The PRO Act (Protecting the Right to Organize Act) was passed on Monday by the United States House of Representatives by a vote of 225-206 (almost exclusively on party lines—5 Republicans voted for the Act; 1 Democrat voted against the Act). With the country focused largely on the pandemic and related issues, the PRO Act has flown under the radar for many in the business world. If you remember the Employee Free Choice Act back in 2009, the PRO Act is far worse for businesses. It is like the EFCA on steroids. Think of it like this. The EFCA was like the cute gecko in the Geico commercials. The PRO Act is like Godzilla.

The PRO Act is a far reaching piece of legislation with only one goal – strengthening organized labor by increasing union membership. The PRO Act will impact ALL private sector employers, regardless of whether they are currently unionized. Here is just a brief summary of what the PRO Act will do if passed by the United States Senate (President Biden supports the Act and has indicated he will sign it into law):

• The Act effectively overturns all state “right to work” laws (i.e., unions will be able to force everyone in the bargaining unit to pay dues, even in right to work states);

• The Act will essentially eliminate the concept of “independent contractors;” virtually all service providers will be deemed employees (and therefore potential union members);

• The Act will strip employers of their “free speech” rights with respect to union elections (by prohibiting employers from requiring their employees to attend meetings regarding the election—meetings used by employers to try to educate employees about the problems caused by unions);

• The Act would restrict an employer’s ability to obtain legal counsel during the organizing and election process by codifying the “persuader rule” under which employers are required to report payment for labor relations advice and services they receive;

• The Act would require employers to turn over employee personal contact information to unions for purposes of organizing (including home address, home phone number, personal cell phone number, and personal email address); the union’s right to organize has been deemed to take precedence over employee privacy;

• The Act would eliminate the NLRA’s prohibition of secondary boycotts (thus allowing unions to pressure/picket neutral third parties in an effort to promote the union agenda);

• The Act would allow the NLRB to force a union on an employer even where the union lost an election because a majority of employees voted against the union;

• The Act would further legitimize the concept of “mini” or “micro” units, essentially allowing unions to dictate to employers the scope of proposed bargaining units;

• The Act would give unions almost unlimited power to determine the type of election to be conducted (in person, via mail, via e-mail, etc.);

• The Act will eviscerate the definition of “supervisor” under the NLRA, thereby significantly increasing the employees who will be included in bargaining units (including many front line supervisors);

• The Act will significantly expand the concept of “joint employment,” thereby exposing employers to much greater potential liability for employee issues;

• The Act will require employers to allow employees to use the employer’s computer system and equipment to solicit co-workers on behalf of unions;

• The Act will eliminate mandatory arbitration agreements with respect to class action employee issues;

• The Act will significantly shorten the time period during which the union and employer can bargain with respect to an initial collective bargaining agreement (if the parties have not reached a contract after 90 days, the matter is required to go to mediation and then binding arbitration); this is the nuclear option for employers; it essentially allows a third party who knows nothing about the employer’s business to set terms and conditions of employment for its employees. The 90-day bargaining period is blatantly unreasonable; and

• The Act significantly increases potential damages available to unions alleging unfair labor practice charges against employers.

At this point, the only thing standing in the way of the PRO Act becoming law is a possible filibuster in the Senate. If the Act comes to a vote in the Senate, it is likely to pass (the composition of the Senate is currently 50 Democrats and 50 Republicans with Vice President Kamala Harris as the tie-breaking vote).

We believe it is critical for businesses and employers everywhere to be educated about the PRO Act and the impact it may have on them if passed. Most employers and business owners have probably never heard of the PRO Act and have no idea just how close it is to becoming law. For more information about the PRO Act or any other labor and employment law issue, please contact any of the H&H attorneys at info@hhe-law.com or 484-408-6001.