The bill’s passage in the U.S. House is a victory for labor unions, as it includes sweeping changes to federal labor laws that would significantly impact employers and empower unions. The legislation now moves to the U.S. Senate, where stiffer opposition to passage is expected.

If enacted, the PRO Act would affect a range of labor law issues, including:

• Employee vs. Independent Contractor: Alter the standards under the National Labor Relations Act (“NLRA”) for determining whether an independent contractor is an employee by adopting the “ABC test,” which could pave the way for more contractors (such as “gig” workers) to organize unions.
• Joint-Employer Test: Codify the joint-employer standard established by the NLRB decision Browning-Ferris Industries, which provides that an employer’s status as a joint employer rests on its reserved right to control employees, either directly or indirectly.
• Joint, Class, and Collective Actions: Prohibit agreements requiring employees to waive the right to pursue joint, class, or collective actions in court.
• Union Elections: Permit employees to hold union elections off company grounds and use mail or electronic ballots for voting.
• Card Checks: Where a union loses an election, it could nevertheless be certified based on signed authorization cards where there is alleged employer interference in the election.
• No Retaliation: Bar employers from retaliating against unionization efforts, protect workers’ right to strike, and override state “right to work” laws.
• Penalties: Grant the NLRB the power to levy fines against companies that engage in unfair labor practices.
• Captive-Audience Meetings: Ban companies from holding “captive-audience” meetings for the purpose of dissuading employees from joining unions.

We will continue to monitor and keep you informed about developments with the PRO Act as it continues to be debated in the U.S. Congress.

Side Note: COVID Relief Bill Extends FFCRA Provisions

The previous extension of the FFCRA (Families First Coronavirus Response Act) on a voluntary basis through March 31, 2021, has now been extended through September 30, 2021. Among the extended provisions is a new 10-day bucket of emergency paid sick leave for employers that opt to provide paid sick leave. This will be available to employees starting April 1, 2021.