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Lawmakers Amending Federal Labor Law

The U.S. House of Representatives is considering a bill that would amend the National Labor Relations Act (NLRA) to strengthen union power and create stiffer penalties for employers that interfere with workers’ collective bargaining rights.

The Protecting the Right to Organize (PRO) Act, H.R. 2474, was introduced by Rep. Bobby Scott, D-Va. Proponents of the bill say it will strengthen workers’ rights and help employees secure better wages and working conditions.

“The PRO Act is a comprehensive proposal to ensure that workers have the right to stand together and negotiate for higher wages, better benefits and safer working conditions,” Scott said in a statement.

Opponents of the bill, however, say it would hurt small businesses and make employers vulnerable to legal action.

“The PRO Act is a legislative grab bag of virtually every modification to the NLRA that organized labor has sought for decades,” said Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and a former National Labor Relations Board (NLRB) member.

“It would radically change the NLRA, legislatively overrule hundreds upon hundreds of NLRB and federal court decisions and completely rewrite fundamental U.S. labor law and policy,” he said.

Philip Miscimarra, an attorney with Morgan Lewis in Washington, D.C., and former chairman of the NLRB, said the bill doesn’t adequately consider the competing interests of employees, employers, unions and the public, which he said Congress has carefully balanced for the past 80 years.

But the bill may not have majority support in the Democrat-controlled House. “Even if it did, there is virtually zero chance of passage in the Republican-controlled Senate,” Hayes noted. “Rather than a serious legislative effort, the bill is more of an outreach for union support in the 2020 election cycle.”

The Details

The PRO Act’s sponsors say the bill would help workers. Among other things, the proposed law would:

  • Establish stricter penalties for employers that violate workers’ rights and make it harder to classify workers as independent contractors.
  • Make it easier for workers to strike for workplace improvements, such as higher wages and better working conditions.
  • Create a mediation and arbitration process to help new unions reach an initial contract with an employer.
  • Authorize unions and employers to negotiate agreements that require workers in the bargaining unit to pay dues, which would repeal the right-to-work laws that are currently in place in 27 states and allow workers to choose whether to pay union dues.

The bill would also “severely undermine employees’ right to determine unionization issues by secret ballot—effectively mandating card check certification,” Hayes noted. Under the card check method, employees can approve union representation when the majority of employees in the bargaining unit sign authorization forms. Currently, unless the employer agrees not to oppose the union, workplaces organize through a secret-ballot election process that the NLRB oversees.

“Dwindling membership numbers continue to pose an existential threat to organized labor … and the PRO Act represents unions’ lifeline,” Hayes said. “They will not let go of it and are willing to play the long game.”

Second Hearing Held

A House Education and Labor subcommittee heard testimony on the PRO Act for the second time on July 25. “It’s rare to have a second hearing so soon,” said Rep. Frederica Wilson, D-Fla., “but the issue is important and a fight we must engage in together on behalf of hardworking Americans.”

She urged fellow lawmakers to help workers with their fight to “earn decent wages and benefits that enable them to care for their families, extended families and themselves.”

Wilson added, “If we have to hold a third hearing on why the PRO Act is so urgently needed, we will do that.”

Advocates for the bill argued that protecting workers’ right to organize and reversing decades of wage stagnation and income inequality are critical. Charlotte Garden, a professor at the Seattle University School of Law, said the NLRA doesn’t do enough to respond to “workplace fissuring,” which happens when large companies hire subcontractors and independent contractors instead of employees.

“The law allows employers to strategically manage their operations through interconnected contractual relationships,” she said. “It shouldn’t then limit how workers respond to the effects of those relationships.”

Rep. Tim Walberg, R-Mich., however, called the bill “a sweeping labor union boss wish list, designed to appeal to liberal Democrat primary voters rather than American workers in a modern workplace.” He said the PRO Act would increase “the coercive power of big labor at the expense of workers and business owners.”

He added that workers’ lives have improved while union membership rates have steadily plummeted. “Thanks to a skyrocketing economy … workers throughout this country are experiencing record-breaking success and opportunity.”

Roger King, senior labor and employment counsel for the HR Policy Association in Washington, D.C., said the bill would harm employers and workers.

He noted that the bill adopts a test similar to that used in California to determine if workers should be classified as independent contractors or employees.

Under California’s so-called ABC test, all three of the following factors must be met for a worker to be properly classified as an independent contractor:

  • A: The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • B: The worker performs tasks that are outside the usual course of the hiring entity’s business.
  • C: The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity.

This is a very difficult test to label someone as an independent contractor and is actually in conflict with the federal labor standards.


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