Federal Labor Law Front and Center in the U.S. Congress

Federal labor law is in the crosshairs of the U.S. Congress. In recent days, the House of Representatives passed the Protecting the Right to Organize (PRO) Act (H.R. 842), which, among other things, would (1) prohibit employers from retaliating against employee unionization efforts, (2) protect workers’ right to strike, and (3) override state “right to work” laws that allow employees to opt out of paying dues in unionized workplaces.

This overhaul to the National Labor Relations Act is a priority for organized labor, which seeks to bolster the federal law currently in place that guarantees private-sector employees the right to unionize, engage in collective bargaining, and take collective action such as strikes.

The bill made its way through the House essentially along party lines—the vote was 225-206. That being said, labor groups should not celebrate too early, as passage by the Senate appears to be a longshot.

This is the case despite the current realities of workers nationwide: (1) those seeking safer working conditions in the shadow of the COVID-19 pandemic and (2) the victims of economic inequality that is undermining the middle class. For their part, management argues that the legislation would eliminate jobs.

The Finer Points

Should the PRO Act win approval in the Senate and become law, employers would no longer be permitted to hold “captive audience” meetings, during which anti-union messages are conveyed. Likewise, under the PRO Act, the National Labor Relations Board could levy fines against companies that engage in unfair labor practices. The NLRB could also mandate arbitration when unionized workers are unable to reach agreement on their contracts with employers.

There is more. The bill would reverse current practice by authorizing employees to hold offsite union elections by way of mail or electronic ballots. In addition, the PRO Act speaks to employee classification issues by adopting the test to determine workers’ employment status now used in California (AB 5). This would be a fly in the ointment particularly for app-based companies like Uber, Lyft and Doordash to the extent it would make it easier for workers to demonstrate they are employees under federal labor law. And while on the topic of gig workers, the PRO Act would authorize them to organize unions and protest retaliation under the NLRA.

Voices From the Senate

Senate Republicans have gone on record suggesting that the proposed law would be harmful to business to the extent it would serve to make unions bigger and reduce individual freedoms. Consequently, given that 60 votes are required to bring the bill to a vote in that chamber, passage of the PRO Act is unlikely. Still, the Biden administration enthusiastically backs the legislation, and Michelman & Robinson, LLP will continue to monitor its progress.

This blog post is not offered, and should not be relied on, as legal advice. You should consult an attorney for advice in specific situations.