A bill that’s working its way through the U.S House of Representatives would strengthen union power and create stiffer penalties for employers who violate federal labor law. The House Education and Labor Committee recently voted 26-21 to advance the bill, with Democrats voting for and Republicans voting against the measure.
The Protecting the Right to Organize (PRO) Act, H.R. 2474, was introduced by Rep. Bobby Scott, D-Va., and is co-sponsored by more than 200 Democratic House members.
The bill will now be considered by the House Rules Committee before ultimately moving to a full House vote. There is “virtually zero chance of passage in the Republican-controlled Senate,” noted Brian Hayes, an attorney with Ogletree Deakins in Washington, D.C., and a former National Labor Relations Board (NLRB) member. “Rather than a serious legislative effort, the bill is more of an outreach for union support in the 2020 election cycle.”
“Labor unions have long fueled our nation’s prosperity, protected the health and safety of American workers, and protected a strong middle class,” Scott said at the Sept. 25 committee meeting.
“When union membership was at its peak … wage growth and worker productivity rose steadily together,” he said, adding that over the last four decades, “union membership has plummeted while income inequality has soared.”
Republican committee members, however, said the bill would diminish the rights of workers and employers alike. Rep. Virginian Foxx, R-N.C., said the PRO Act would inflict “many indignities” on workers by sharing their private information without their consent and requiring workers to make payments to political organizations they don’t support.
She called the measure a “union boss wish list masquerading as legislation.”
The Society for Human Resource Management (SHRM) opposes the bill. “SHRM supports balanced labor-management relations and recognizes the inherent rights of employees to form, join, assist or refrain from joining a labor organization,” said Johnny C. Taylor, Jr., SHRM-SCP, SHRM’s president and chief executive officer.
“SHRM has long advocated for policies to ensure that employers and employees are equally represented at the bargaining table,” he wrote in a letter to House members.
Scott said the PRO Act would “put teeth” into the National Labor Relations Act (NLRA) by “restoring workers’ right to organize and restoring balance to the economy.” 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 set up a card-check method for union certification, under which 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.
Foxx called the card-check scheme a “biased process” that would allow unions to represent workers without ever winning a secret election ballot.
“Congress shouldn’t be in the business of denying workers’ voting rights,” she said.
Independent Contractor Misclassification
The House committee approved four amendments to the PRO Act, including one that would allow workers to vote for union representation by mail or offsite and another that would make it an unfair labor practice undwer the NLRA to misclassify a worker as an independent contractor rather than an employee.
The bill would create a California-like independent-contractor test, which would make it difficult for businesses, particularly those in the gig economy, to classify workers as contractors.
[SHRM members-only toolkit: Employing Independent Contractors]
California recently passed AB 5, which codifies the three-prong “ABC” test that the state high court adopted in Dynamex Operations v. Superior Court. Under the test, a worker is presumed to be an employee unless the employer can show all of the following:
- 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.
- The worker performs tasks that are outside the usual course of the hiring entity’s business.
- 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.
The PRO Act would set a similar standard nationally. “Too often, employers misclassify their employees as anything but employees to avoid their legal obligations to workers,” Scott said in support of the provision. “The PRO Act safeguards against these practices.”
Business groups, however, oppose this standard. “This new restrictive standard would take away many economic opportunities, particularly for those providing and receiving services in the gig economy,” said Sean Redmond, executive director of labor policy with the U.S. Chamber of Commerce.