Authors: Stephen Lanctot, Fred Alvarez, and Tom Lin
Why should California employers care about another state’s Senate runoff race? Here’s why they should care: The Protecting the Right to Organize Act (PRO Act).
Typically, employers doing business in California seldom invest themselves in what’s happening in Congress. That’s because California labor laws are generally more protective of employee rights. But this one is worth watching, especially given the uncertainty surrounding control of the Senate and its relationship with the incoming Administration.
On February 6, 2020, the House of Representatives passed the PRO Act (the full text of the act is found here), which seeks to offer significant amendments to the National Labor Relations Act (NLRA). This legislation passed the House largely along party lines, again underscoring the importance of the January 2021 elections. If it makes its way through the Senate and is signed by President Biden in its current form, it could drastically affect the current state of labor relations between management, workers, and unions.
Many have described the PRO Act as a union, pro-labor wish list. It’s obvious why. To name just a few changes, the PRO Act would amend the NLRA as follows:
- Revise the definition of employee to broaden the scope of workers covered by the NLRA, which could include gig economy workers;
- Prohibit employers and employees from entering into agreements under which employees waive their right to pursue or join collective or class-action litigation (because such activity is concerted activity under Section 7);
- Enable a worker to bring a civil action in a federal district court under Section 8(a) after 60 days following the filing of a charge before the National
- Labor Relations Board (NLRB), or when the NLRB determines it will not pursue the complaint;
- Expand the available remedies for employees subject to economic harm as a result of an unfair labor practice to include double the amount of actual damages (g., back pay), consequential damages, and punitive damages;
- Establishes civil penalties ($50,000 to $100,000 for each violation) for employers who engage in unfair labor practices under Section 8(a);
- Permit a union to encourage the participation of union members in strikes initiated by employees represented by a different labor organization (known as secondary strikes), and terminate the right of employers to bring claims against unions that conduct such secondary strikes;
- Make it an unfair labor practice to replace workers who participate in strikes;
- Compel an employer to recognize and bargain with a union that has received a majority of votes, if the union loses a representation election and the NLRB finds that the employer unlawfully interfered; and
- Permit employees to use the employers’ electronic communication devices and systems to engage in concerted activity under Section 7.
It’s doubtful that the PRO Act will pass as written. But even if another iteration of the bill proceeds through the Senate and onto the President’s desk, one thing is clear about what the PRO Act portends—federal labor law is on the agenda for the Democratic party.
In sum, the PRO Act could provide unions with the tools necessary to make labor organizing a top priority in 2021 and beyond. Employers who are unfamiliar with this new federal-labor landscape may find themselves on the other end of an unfair labor practice charge or facing hefty monetary penalties (or both). California employers should pay close attention to the future of Washington D.C., even if the headlines only read “Georgia.”
