Managers Should Be Aware of the PRO Act

​The House of Representatives this month passed a sweeping overhaul of U.S. labor law, and businessgroups and managers are looking at how this legislation—known as the Protecting the Right to Organize (PRO) Act—would, if enacted, impact their workplaces.

In February, House and Senate Democrats introduced the PRO Act, which would bring the most significant changes to U.S. labor law since the 1935 National Labor Relations Act (NLRA).

President Joe Biden has vowed to be "the most pro-union president you have ever seen" and has promised that unions will have increased power in his administration. The Senate has switched from Republican control to the more traditionally union-friendly Democratic control, though it is far from certain that there are enough votes in that chamber to pass the bill.

Still, business groups are girding for workplace disruptions if the bill becomes law. "Businesses—both union and non-union—should indeed be concerned," said David Pryzbylski, a labor and employment attorney at Barnes & Thornburg LLP in Indianapolis.

The bill could impact how managers perform their jobs on a day-to-day basis, Pryzbylski said.

The bill would prohibit companies from using permanent replacements in response to an economic strike. Employers already are prohibited from permanently replacing striking workers during unfair labor practices strikes.

The PRO Act would also mandate that companies allow employees to use e-mail and other workplace communication systems to discuss union-related issues. "This means that managers could see an uptick in distraction in the workplace due to an increased dialogue on union organizing," Pryzbylski said.

In addition, the bill would make it easier for employers using staffing companies to be found to be "joint employers" of the contingent workforce. This means that a company could be held liable for labor law violations related to temporary workers over whom they exercise little to no day-to-day control.

"The PRO Act shifts the focus from current labor law's intention to eliminate and minimize disruptions to the free flow of goods, and to give employees the chance to join or not join a union," said Michael Lotito, an attorney with Littler in San Francisco.

Other provisions could directly impact managers by:

* Restricting the ability of employers to obtain labor relations advice.

* Codifying the so-called "ABC test" to make independent contractors into employees who are covered by the NLRA. It adopts the same definition that was used in the California law known as AB 5.

* Redefining a "supervisor" to include more front-line leaders as employees. Narrowing the definition of supervisor could particularly impact nurses, where a nurse who has oversight over some colleagues is sometimes classified as a supervisor, even if he or she is not part of the management process.

A manager or supervisor is not entitled to organize or engage in union activity. By changing the supervisor definition, fewer managers would exist, and there would be more employees who can organize. If there is a strike, there would then be fewer managers available to keep the company running.

Also, managers would be subject to any negotiated agreement and could lose the right to speak for themselves with regard to responsibilities, compensation and upward mobility, said Jennifer Orechwa, chief operating officer of Projections Inc., a labor relations consulting firm in the Atlanta metro area.

* Expanding penalties for violations of the NLRA. The bill would impose up to a $50,000 fine for each violation.

* Broadening the NLRA to more sectors of the workforce.

*Prohibiting so-called "captive audience meetings" in the workplace, in which employers require their workers to attend a session where companies communicate their views on unions.

"This sweeping legislation extends well beyond union organizing," Littler wrote in a report on the bill. "Non-union and unionized employers alike should understand the scope of its proposed changes, and the practical impact those changes would have on their relationship with employees."

The bill would severely limit how and when employers can respond to union petitions, meaning that supervisors, in particular, would have to be "very attuned to employees' issues and problems, and understand how to recognize the potential for a union [to form] so that employers can get their house in shape before the petition is even filed," said Jon Hyman,  a labor and employment attorney at Meyers Roman Friedberg & Lewis in Cleveland.

A key reason why the labor movement and Democrats are interested in the bill is because of a decades-long slide in union membership. Unions have been steadily declining since their heyday during the post-World War II economic boom. After union representation peaked at nearly 35 percent of the workforce in 1954, it is now only 10.8 percent of the labor force. Most of that is among government employees, where union membership is more than five times higher than in the private sector. In 2020, 34.8 percent of public-sector workers were union members, while 6.3 percent of private-sector workers were unionized.

The House passed the bill in early March with a 225-206 vote along mostly party lines, winning the support of five Republicans, including three who co-sponsored the measure. It must now pass the Senate. But because it's unlikely to win the 60 votes needed to pass chamber, union leader have joined the push with other progressive groups to avoid a filibuster. 

Holly Rosenkrantz is a freelance writer based in Washington, D.C.