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Act would effect over 50 changes to the NLRA – many of which would impact all private sector employers regardless of whether their workers are unionized. One such impact is that state “right to work” laws – laws that prevent employees from being compelled to join unions or pay dues as a condition of their employment – would be overturned, permitting agreements that require all employees within a bargaining unit to pay dues to a labor organization as a condition of employment.

Additionally, the PRO Act would drastically increase the NLRA’s coverage. For example, the PRO Act would codify the “ABC” test for determining whether an individual is an independent contractor. Under the ABC test, a worker would be considered an “employee,” and therefore covered by the NLRA, unless the hiring entity demonstrates certain facts. Similarly, the PRO Act would narrow the definition of “supervisor,” meaning that employers would not be able to rely on those individuals to exercise certain employer rights under the NLRA. The PRO Act would also expand the scope of “joint employer.” For example, those employers that contract with staffing agencies could be considered a “joint employer” under the new act.

The PRO Act would also generally limit employers’ actions. For example, employers would be required to turn over employees’ personal contact information prior to an election or to allow employees to use employer electronic systems to organize and engage in protected activities. Additionally, the PRO Act would require employers to disclose payments made for labor relations advice and services they receive from their attorneys.

Further, much like the efforts mentioned above, the PRO Act would restrict the application of arbitration agreements. Specifically, it would prohibit any attempt to enter into or enforce an agreement in which an employee waives their right to collective or class action, overruling the Supreme Court’s decision in Epic Systems. Yet, the PRO Act would compel parties bargaining for an initial collective bargaining agreement to submit to mediation, and eventually binding arbitration, should they not reach an agreement within 90 days of the parties commencing negotiations. Finally, the PRO Act would expand penalties for violations of the NLRA by including civil penalties for non-compliance, which could be enforced via civil action in federal court and by applying penalties to the employer’s individual directors and officers.

As employers look forward and past the first one hundred days of President Biden’s administration, employers should remain aware of these efforts and be prepared to evaluate and revise their policies, practices, procedures, and agreements as they pertain to these topics.

Jennifer Robinson

Office Managing Shareholder Nashville, TN jenrobinson@littler.com (615) 383-3374

Sarah Belchic

Associate Nashville, TN sbelchic@littler.com (615) 383.3273

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