House Approves Union Organizing Bill – Pro Act

On February 6, 2020, the House passed the controversial Protecting the Right to Organize (PRO) Act. The act incorporates the “ABC test,” which changes the NLRA and related labor laws to change the definitions of “employee” and “supervisor” to prevent private employers from misclassifying employees to exclude them from labor law protections.

The NLRA would be amended to incorporate the “ABC test”, providing that any individual performing any service would be considered an “employee” 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; and

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.

The “ABC Test”, as amended, would not preempt any state laws governing the wages, work hours, workers compensation, or unemployment insurance of employees.

Other key PRO Act provisions prohibit employers from:

• replacing or discriminating against workers that strike; and
• requiring or coercing employees to attend employer meetings designed to discourage union membership.

The PRO Act permits:

• workers to participate in collective or class action litigation; and
• injunctions against employers from engaging in unfair labor practices involving discharge or serious economic harm to an employee.

The PRO Act also requires employers to provide a voter list to a labor organization that has petitioned to represent such employees. Such voter list shall include the names of all employees in the bargaining unit and such employees’ home addresses, work locations, shifts, job classifications, and, if available to the employer, personal landline and mobile telephone numbers, and work and personal email addresses.

Concerns have been expressed that the Pro Act may undermine the right to secret ballot, privacy protections and would overturn state “right to work” laws.

We will advise clients of any developments with respect to the proposed Act.  Please reach out to any of the attorneys in our Labor & Employment practice group should you have any immediate questions or concerns.