The Biden Administration and The PRO Act

January 7, 2021

The election of two Democratic senators from the state of Georgia secures a Democratic majority in both houses of the U.S. Congress, which greatly enhances President-Elect Biden’s and the Democrats ability to achieve their agenda on a host of issues, including pursuing extensive changes in the country’s labor relations and employment laws.

Highlights of the new administration’s goals include strengthening unions by increasing the following: the number of American workers subject to collective bargaining, penalties for labor and employment law violations, the scope and protections for federal discrimination laws, and by raising the federal minimum wage, ending “misclassification” of independent contractors, and checking the abuse of corporate power.

A central component of the incoming Biden administration’s labor relations platform is The Protecting the Right to Organize Act (PRO Act), which passed the House of Representatives in February 2020, but failed to pass the Senate. The PRO Act is designed to make it easier for employees to form and join a union and to limit employers’ ability to ward off unionization. President-elect Biden seeks to achieve the following objectives tied into the PRO Act:

  • Card Check: President-elect Biden co-sponsored the original 2008 Employee Free Choice Act (EFCA), which allowed workers to choose to form a union if a majority of employees signed union authorization cards, instead of voting in a National Labor Relations Board (NLRB) conducted secret ballot election.
  • Reclassifying Independent Contractors: The PRO Act would expand the protections of the National Labor Relations Act (NLRA) to more workers by adopting stricter criteria to classify a worker as an independent contractor.
  • Joint Employer Definition: President-elect Biden has pledged to redefine “joint employer” to include separate companies that do not have direct control over employees, but do have indirect control or even the mere potential to control those employees.
  • Micro-Unit Elections: In 2017 and 2019, the NLRB overturned a previous decision that allowed unions to represent a smaller subset of a larger workforce (called a “micro-unit”). However, under the incoming Biden administration, the NLRB could allow the return of micro-unit.
  • Rapid Election Timetables: Under President Obama, the NLRB implemented revised union election rules that shortened the time between the filing of a union election petition and the election itself to an average of 21 days, down from a previous average of 38 days. These tight election deadlines often left employers scrambling to respond when an election petition was filed.  Biden’s plan includes codifying the shortened election timelines into law.
  • Ban on Employer “Captive Audience” Meetings: During most union election campaigns, employers hold mandatory meetings with employees, often referred to as “captive audience speeches,” on paid time to discuss campaign issues. The PRO Act would ban such meetings, effectively eliminating an employer’s ability to communicate with its employees about the union election.  
  • Mandatory Arbitration of Initial Collective Bargaining Agreements: If any newly elected union fails to reach an initial contract with the employer within 90 days of negotiations, the PRO Act requires the employer and union to engage in mediation through the Federal Mediation and Conciliation Service (FMCS).  If mediation fails, FMCS would refer the parties to “interest arbitration,” often referred to as “baseball arbitration” or “final offer arbitration.” A three-person arbitration panel would then decide the wages, benefits, and other terms and conditions of employment to be contained in the collective bargaining agreement.
  • Expanded Right to Strike: The PRO Act would make frequent or short duration strikes lawful and prevent an employer from hiring permanent strike replacements. It would also permit secondary boycott activity (presently illegal). This activity includes strikes or picketing of an employer with which the union does not have a labor dispute that is intended to induce that employer to cease doing business with another employer with which the union does have a labor dispute.
  • Ban Right to Work Laws: More than one-half of all states have a right to work law, which prohibits an agreement between an employer and a union that requires employees to pay dues to a union as a condition of employment. The PRO Act would supersede these laws and permit union membership to be a condition of employment in all 50 states. 
  • Increased Penalties: The PRO Act creates personal liability for corporate officers and directors as a remedy if an employer is found to have violated federal labor relations law. Potential liability would be expanded to include consequential damages, punitive damages, and fines that the NLRB presently does not have the authority to impose.   The PRO Act also authorizes individuals and unions to sue employers in federal court for violations instead of limiting the matters to the jurisdiction of the NLRB and allows a successful plaintiff to be awarded attorney’s fees.  President-elect Biden intends to go beyond the PRO Act by enacting legislation to hold company executives personally liable when they interfere with organizing efforts, including criminally liable when their interference is intentional.
  • “Persuader” Reporting: The Obama administration’s Department of Labor proposed a regulation that would have required employers to report the identity and compensation of a lawyer or consultant (called a “persuader”) to help combat union organizing.  These persuader regulations are intended to discourage lawyers and consultants from helping employers fight unions. President-elect Biden’s plan would reinstate and codify this persuader rule into law.

As additional support for these objectives, President-elect Biden stated that he will “create a cabinet-level working group that includes representatives from labor [that] will deliver a plan to dramatically increase union density and address economic inequality” in the first 100 days of his Administration.  Such a cabinet level advisory and advocacy component of the Executive Branch could over time change the labor relations environment of the United States in both private industry and government.

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