The Dangers Of The PRO Act

Volume: 20 | Issue: 13
February 23, 2021

The “PRO Act” is the shorthand name for the “Protecting the Right to Organize Act of 2019.” It was passed by the U.S. House of Representatives on February 6, 2020. Despite its innocuous title, this bill actually seeks to make major expansions to the National Labor Relations Act (NLRA) and is highly relevant to all employers – those with unions and those without.

The bill prohibits agreements by employees to waive the right to pursue or join collective or class-action litigation. As such, it would overturn the Supreme Court’s 2018 determination that mandatory arbitration agreements requiring the waiver of class and collective actions are lawful under the NLRA.

The bill changes the NLRA’s definitions of “employee,” “employer,” and “supervisor” to include as employees those who are presently considered independent contractors, narrow the amount of supervisors who are excluded from the NLRA, and include more organizations as employers by expanding the definition of joint employer. It permits employees to engage in secondary strikes (strikes against other companies) and makes it unlawful for an employer to replace workers who participate in strikes. The bill allows collective bargaining agreements to require all employees to pay dues to the union in direct contravention of Nevada’s right to work law (which allows employees to choose not to pay dues). It substantially changes the rules for negotiating a first collective bargaining agreement, allowing quick resort to an arbitrator if the parties are unable to agree to terms and conditions of employment.

The bill reimposes fast-track union election procedures and makes it unlawful for an employer to require employees to attend the employer’s campaign activities. It also makes it easier for unions to control the election procedures and scope of the bargaining unit.

The PRO Act greatly expands the remedies available for violations of the NLRA to include liquidated damages (two times the amount of actual damages), consequential damages, punitive damages, and attorney’s fees, and establishes a civil penalty against an employer and its officers and directors. It allows employees to sue employers directly for interfering with employees’ rights to organize or join a labor organization.

It is likely that this harmful bill will meet with substantial opposition in the Senate. However, it does have President Biden’s support, and some portions of it may pass. As always, we will keep you updated on this legislation, and we are available to answer your questions.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.

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