Labor & Employment Law Daily House advances union organizing bill, the PRO Act
Tuesday, February 11, 2020

House advances union organizing bill, the PRO Act

By Pamela Wolf, J.D.

The legislation, the Protecting the Right to Organize Act, would incorporate the controversial “ABC test” into federal labor law to distinguish “employees” from “independent contractors.”

On February 6, the House passed the controversial Protecting the Right to Organize (PRO) Act in a 224-194 mostly party-line vote that nonetheless saw seven Democrats join Republicans to vote against the measure, and five Republicans join Democrats to favor it.

PRO Act would incorporate “ABC test.” The PRO Act was introduced in May 2019, ordered reported in September by the Committee on Education and Labor, and placed on the Union Calendar in December. As reported by the House, H.R. 2474, would amend the NLRA and related labor laws to change the definition of “employee” and “supervisor” to prevent employers from misclassifying employees to exclude them from labor law protections.

Significantly, Section 2(3) of the NLRA would be amended to provide that an individual performing any service would be considered an “employee” (except as provided in the earlier part of the subsection) and not an “independent contractor,” unless:

A. The individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
B. The service is performed outside the usual course of the business of the employer; and
C. 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.

Other PRO Act provisions. The PRO Act would:

  • Expand unfair labor practices to include prohibitions against replacement of or discrimination against workers who participate in strikes;
  • Make it an unfair labor practice to require or coerce employees to attend employer meetings designed to discourage union membership;
  • Permit workers to participate in collective or class action litigation;
  • Allow injunctions against employers engaging in unfair labor practices involving discharge or serious economic harm to an employee;
  • Expand penalties for labor law violations, including interference with the NLRB or causing serious economic harm to an employee; and
  • Allow any person to bring a civil action for harm caused by labor law violations or unfair labor practices.

House amendments. Prior to the final House vote on passage, the following amendments to the PRO Act were approved:

  • Clarification that nothing in the bill should be construed to affect the jurisdictional standards of the NLRB with respect to small businesses;
  • Providing whistleblower protections to employees who report violations of the Labor Management Reporting and Disclosure Act;
  • Clarification that the bill should not be construed to affect the privacy of employees with respect to voters’ lists provided to labor organizations by employers pursuant to elections directed by the Board;
  • Clarification that the “ABC test” included in the PRO Act does not preempt any state laws governing the wages, work hours, workers compensation, or unemployment insurance of employees;
  • Elimination of the waiting period for union elections and returning the requirement that NLRB’s regional directors schedule elections as “early as practicable;”
  • Requirement that employers post a Notice of a Petition for Election within two days after the NLRB notifies an employer and union about a pre-election hearing, thereby restoring the 2014 Election Rule.
  • Requirement that regional directors transmit the Notice of Election at the same time as the Direction of Election and require such notice to be transmitted electronically when possible.

Signals significant change. Education and Labor Committee Chairman Bobby Scott (D-Va.), who introduced the legislation, applauded House passage of the bill, calling the PRO Act a “bold proposal” that is “the most significant upgrade to U.S. labor law in 80 years.”

“When workers have the power to stand together and form a union, they have higher pay, better benefits, and safer working conditions,” Scott said. “Strong unions not only benefit those represented by unions, they benefit non-union workers and the children of union members. Union contracts are proven to even reduce the persistent racial and gender wage gaps, because under a union contract, men and women, blacks and whites—everyone—gets equal pay for equal work.”

Leveling the playing field. The legislation is also arguably a response to a perceived long-term attack on unions in order to benefit employers. According to Scott: “The sustained, decades-long attacks on labor have driven union membership to historic lows and revealed that current labor laws are too weak to defend workers’ basic right to join a union and collectively bargain with their employer. The PRO Act is a comprehensive and sensible response that will level the playing field for workers.”

Radical and backwards? However, Committee Ranking Member Virginia Foxx (R-N.C.), speaking before the full House vote, called the bill “a radical, backwards-looking bill that will diminish the rights of workers and employers alike while harming the economy and providing a political gift to union bosses.”

Shifting power to unions. “Union bosses could self-correct and increase transparency and accountability to serve workers better, or dedicate more resources to union organizing, rather than attempting to organize less than one-tenth of one percent of eligible employees, as they did in 2018,” Foxx said. “Instead, the largest federation of labor unions in America spends more than three times as much money on political activity as it does on its stated purpose of organizing and representing workers. And they are resorting to their usual arm-twisting and intimidation tactics by demanding Democrats pass the PRO Act.”

Worker privacy. Foxx also criticized the bill for its alleged impact on worker privacy. The PRO Act “will require employers to hand over workers’ private, personal information to union organizers without workers having any say in the matter,” which “would make it even easier for union organizers to target, harass, and intimidate workers,” she said.

Right-to-work laws overturned. Foxx also complained that H.R. 2474 would overturn all state right-to-work laws. She characterized these as laws that “allow workers to decide for themselves whether to join a union and pay dues.” If the legislation is enacted, “workers will be forced to take money from their paychecks and give it to labor unions even if they don’t want to be represented by a union,” she warned.

Secret ballet protections. The Republican lawmaker also pointed to the “right to vote by secret ballot,” which she claimed would be undermined by the PRO Act. “This is hypocrisy at its best,” Foxx said. “House Democrats elect their own leaders by secret ballot and Democrats held up the USMCA trade deal to guarantee workers in Mexico had the right to a secret ballot. Yet, they are willing to deprive American workers of that same protection.”

“Employee” test. Turning to what she called among the bill’s “most harmful provisions,” Foxx criticized “the incorporation of California’s newly enacted, overly broad, and confusing definition of employee,” [referring here to the "ABC test"], which she said “will deprive millions of Americans the opportunity to work independently and start their own businesses.”

Restoring fundamental right. The Economic Policy Institute (EPI) weighed in on passage of the PRO Act with a different take, calling it “a critical step in restoring workers’ right to organize and bargain collectively,” a fundamental right that “has been eroded for decades as employers exploit weaknesses in the current law and influence the government to weaken current protections.”

According to EPI’s Director of Government Affairs/Labor Council, Celine McNicholas, “employers often interfere with workers’ rights to organize, and face no real consequences for doing so,” with resulting “stagnant wage growth, unsafe workplaces, and rising inequality.” As she sees it, the PRO Act “will go a long way toward restoring workers’ right to join together to bargain for better wages and working conditions by streamlining the process when workers form a union, ensuring that they are successful in negotiating a first agreement, and holding employers accountable when they violate labor law.”

McNicholas labeled the PRO Act “an important effort to bring U.S. labor law into the 21st century—giving working people more power to counteract rising corporate power and inequality.”

A win for workers’ rights. Neera Tanden, president and CEO of the Center for American Progress Action Fund, also applauded passage of the PRO Act, saying that it “will go a long way toward protecting workers’ rights by creating enforceable penalties for companies that violate these rights, expanding collective bargaining, and strengthening workers’ access to fair union elections and requiring corporations to respect the results.”

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