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U.S. House Passes Landmark Pro-Union Rights Bill: Key Provisions

On March 9th, 2021, the U.S. House of Representatives passed the most pro-worker labor legislation since the 1930s. If it passes the Senate, where it faces an uphill battle, the Protecting the Right to Organize Act (PRO Act) would amend the National Labor Relations Act of 1935 (NLRA), the federal law that allows employees the right to unionize, engage in collective bargaining and strike. Passage of the PRO Act would dramatically tilt the law in favor of unions and deprive U.S. businesses of many longstanding legal rights.

The following key provisions of the PRO Act would promote unions and organizing campaigns by:

  • Eliminating right-to-work laws in dozens of states (including Nebraska, Iowa and South Dakota) that bar unions from requiring workers to become union members and pay union dues at unionized companies.
  • Barring employers from calling mandatory meetings to inform employees of the company’s position on unionizing.
  • Denying employers the right to permanently replace workers who strike over contract negotiation positions.
  • Allowing many current independent contractors or temporary workers eligibility to unionize, likely resulting in tens of thousands of gig workers gaining the ability to organize.
  • Narrowing the definition of supervisor by eliminating two elements of the current definition (“assign” work and “responsibly direct” employees) and requiring supervisors act in their supervisory capacity for a majority of the time. Under this new definition, hundreds of thousands of company representatives (now designated as supervisors) could be included as members of a bargaining unit, thereby depriving the company of its representation.
  • Enhancing penalties that federal regulators may impose, including fines of up to $100,000 doubling the amount of backpay awards and adding punitive damages against employers.
  • Granting workers the right to sue in court if the National Labor Relations Board (NLRB) declines to prosecute their case, instead of allowing the NLRB to decide which cases to litigate. This will significantly increase defense costs for employers.
  • Shortening election timeframes which will limit the amount of time employers can use to prepare and communicate with employees prior to an election.
  • Allowing elections to be conducted by mail or electronically.
  • Expanding instances in which workers can picket and strike.
  • Mandating arbitration for initial contracts if there is no agreement during negotiations. This means that key terms under the contract may be decided by a federal arbitrator rather than through collective bargaining.
  • Extending joint employer liability for unfair labor practices by making it easier for unions to drag outside companies into a labor dispute and to impose liability on them.
  • Discouraging employers from seeking legal advice by mandating that employers must disclose information, even advice from legal counsel, that could be interpreted as persuading employees regarding union organizing or collective bargaining.
  • Requiring employers to allow employees to use company computers and email systems to circulate pro-union organizing materials.
  • Imposing potential personal liability for company officers and directors if the company commits unfair labor practices.
  • Changing 85 plus years of rules defining which employees would be in a particular voting/bargaining unit.

The PRO Act passed the House with a 225-206 vote, which included five Republican votes. In the 50/50 split Senate, it will take 60 votes to advance past an anticipated filibuster. The PRO Act is backed by President Biden, who has been vocal about his administration’s labor reform goals.

The bill is ardently opposed by business groups, including the nation’s largest business lobbying group, the U.S. Chamber of Commerce. The Society for Human Resource Management also wrote a letter expressing many concerns with the bill. Even if the Act does not pass in the Senate in its entirety, parts of the Act may still pass the Senate and eventually reach President Biden’s desk.

McGrath North will continue to track the legislation and provide updates. For more information about how this bill could impact you, please contact a member of the McGrath North Labor and Employment Group.

Labor and Employment:
Abbey Moland (402) 633-9566 Aaron Clark (402) 633-9580 Ruth Horvatich (402) 633-1521
Cody Brookhouser-Sisney (402) 633-6891 Diana Morales McFarland (402) 633-9563 Britni Summers (402) 633-6894