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Sweeping Legislation Passed By House May Be Sign Of Impending Labor Law Reforms

On February 6, 2020, the U.S. House of Representatives voted 224-194 to amend the National Labor Relations Act (NLRA or the "Act") to increase avenues for employer liability and dramatically expand employee protections around concerted activities and collective bargaining. This set of amendments to the NLRA (the "Protecting the Right to Organize Act," or "PRO Act"), introduced in May 2019 and currently with 218 House cosponsors (including three Republicans), now advances to the Republican-controlled Senate.

While highly unlikely to pass in its current form, the PRO Act provides employers with a road map of labor "pain points" that may well show up in future legislation, particularly if Democrats regain control of the Senate and/or White House in this fall's elections.

Democrats, labor organizations, and other supporters of the PRO Act claim that the amendments add the "teeth" necessary to fulfill the Act's original goal of facilitating collective bargaining. Critics of the existing NLRA complain that it imposes relatively weak penalties for violations, fails to provide for a private right of relief, permits employers to exclude employees from the Act's protections by designating them as "supervisors" or "independent contractors," and delays parties from reaching a first collective bargaining agreement.

To combat these purported weaknesses, the PRO Act would strip employers of critical managerial rights and bargaining powers currently enjoyed under the Act, while leaving intact or strengthening those available to employees. Below are just a few of the PRO Act's proposed changes, which would represent the most comprehensive pro-labor changes to the NLRA since the statute's enactment in 1935:

  • Barring "right to work" laws. The PRO Act would invalidate laws currently in effect in 27 states that permit employees who do not wish to be members of, or financially support, a union to work in union-covered job roles without having union fees deducted from their paychecks.
  • Strengthening employees' economic weapons. The NLRA currently permits employers to continue business operations by permanently replacing employees who strike for economic reasons (i.e., in support of bargaining demands). The PRO Act would limit employers to hiring only temporary replacements in the face of a strike. The PRO Act also would grant employees the right to engage in "intermittent strikes" (i.e., striking and returning to work over and over again in relatively quick sequence) and secondary boycotts, both currently prohibited under the NLRA.
  • Increasing financial penalties for employers. Currently, employees are required to utilize the National Labor Relations Board's ("Board") processes for adjudicating violations of the Act, which generally do not allow for recovery of monetary damages other than back pay. The PRO Act would amend the NLRA to permit liquidated damages, consequential damages, and civil penalties in certain circumstances, as well as a private right of action for employees to sue their employers in court for violations.
  • Paving the way for union recognition outside an election. The PRO Act would allow the Board to order an employer to bargain with a union based on authorization cards collected from a majority of employees in the proposed bargaining unit, even if the union has lost its representation election. The Board would be empowered to do so if it found that the employer committed an unfair labor practice or engaged in other election interference and the employer cannot prove that the election results were not impacted.
  • Narrowing the definition of independent contractor. The PRO Act would codify a legal test that makes it much more difficult for a worker to be classified as an independent contractor, rather than a statutory employee entitled to the Act's protection.

Implications For Employers

Labor experts and practitioners generally predict that the PRO Act will fail in the Senate, given the current Republican majority. Further, on February 5, 2020, the White House released a policy statement saying that President Trump's advisors would recommend a veto if the bill passes in its current form.

That said, depending on the results of the 2020 elections, it is possible that some form of the PRO Act may soon make its way back before Congress. SHPC will be tracking these developments closely.