Why should California employers care about another state’s runoff race? Here’s why you should care: The Right to Organize Protection Act (PRO Act).
Typically, employers doing business in California rarely invest in what is happening in Congress. That’s because California labor laws are generally better protecting workers’ rights. But this one is worth watching, especially given the uncertainty surrounding the control of the Senate and its relationship with the new government.
On February 6, 2020, the House of Representatives passed the PRO Act (the full text of the law can be found here), which aims to make material changes to the National Labor Relations Act (NLRA). This legislation was largely partisan and underlined again the importance of the January 2021 elections. If it finds its way through the Senate and is signed by President Biden in its current form, it could reflect the current state of industrial relations between management, workers and unions affect drastically.
Many have described the PRO Act as a union wish-list for work. It’s obvious why. To name just a few changes, the PRO Act would amend the NLRA as follows:
- Revision of the definition of worker to expand the scope of workers covered by the NLRA, which could include gig economy workers;
- Prohibit employers and workers from entering into agreements whereby workers waive their right to take part in or join collective redress or class actions (as that activity is a concerted activity under Section 7);
- Allow an employee to bring a civil action in a federal district court under Section 8 (a) within 60 days of filing a charge with the National Labor Relations Board (NLRB) or if the NLRB determines that it will not pursue the complaint;
- Expand the available remedies for workers exposed to economic damage as a result of unfair labor practice to double the actual damage (e.g. back payment), consequential damage and punitive damages.
- Establish civil penalties ($ 50,000 to $ 100,000 for each violation) for employers who engage in unfair labor practices under Section 8 (a);
- Allow a union to encourage union members to participate in strikes initiated by workers represented by another work organization (so-called secondary strikes) and end employers’ right to bring claims against unions that organize such secondary strikes carry out.
- Make it an unfair labor practice to replace workers who go on strike.
- Force an employer to recognize and negotiate with a union that received the majority of the votes if the union loses a representative election and the NLRB determines that the employer has intervened illegally. and
- Allow workers to use the employer’s electronic communication devices and systems for concerted activities as specified in Section 7.
It is doubtful that the PRO law will be passed as written. But even if another iteration of the bill goes through the Senate and onto the president’s desk, one thing is clear about what the PRO Act means – federal labor law is on the agenda for the Democratic Party.
Overall, the PRO Act could provide the unions with the tools necessary to ensure that work organization is top priority in 2021 and beyond. Employers unfamiliar with this new federal work landscape may find themselves on the other end of an unfair labor practice charge or facing hefty fines (or both). California employers should pay close attention to the future of Washington, DC, even if the headlines only say Georgia.