The impact of the PRO Act on positive employee relations looks to be immense. The PRO Act is the most comprehensive proposed legislation amending the National Labor Relations Act (NLRA) in decades, and it still has life with its provisions left intact, which is significant to unionized and non-unionized businesses. It’s not the only legislation impacting employers either. Here are the four proposed Congressional bills that have the potential to remake the labor force, have a significant impact on your operations and make staying union-free even more challenging.
A Flurry Of Changes Coming
1. PRO Act
The House of Representatives passed the Protecting the Right to Organize Act (PRO Act) again on March 9, 2021, and are hoping against all hope that it passes in the Senate. This is the most far-reaching bill passed (twice now) since the National Labor Relations Act (NLRA). There will be an intense fight in the Senate to prevent passage unless the filibuster is eliminated. The Senate is currently split 50/50, and Vice President Kamala Harris holds the tie-breaking vote. However, the bill appears headed for a filibuster which means it will take 60 Senate votes to pass, thus lowering the odds of passage.
Despite the low odds of the PRO Act making it to the President’s desk, there are other ways for the current administration to get some or all of the PRO Act provisions implemented. For example, the bill can be broken up into individual pieces of legislation addressing fewer issues at a time, or there could be a series of Executive Orders.
A likely scenario is the Labor Secretary will work with the NLRB to direct decisions that effectively implement some of the PRO Act provisions. For example, the NLRB, now headed by a Democrat, could make decisions as opportunities come up that convert some independent contractors or gig workers to employee status, impacting whole groups of employees and industries. The PRO Act makes the ambush election rules permanent. Still, the NLRB can modify the ambush election rule in favor of unions, as it did in December 2019 in favor of employers.
There are many ways for the NLRB to strengthen union rights, and you can count on it happening. The PRO Act, if passed, would make some of the decisions permanent and add other requirements for employers. Even if it doesn’t pass, you will have to adhere to the NLRB decisions and rulemaking that will be pro-union until another change in board makeup.
UnionProof outlined the 12 major provisions in the PRO Act that impact employers, including their implications for employers and actions you can take now. The PRO Act is a pro-union bill that is intended to strengthen the ability of workers to organize. As a review, the following is a listing of the 12 main provisions in the legislation:
- Re-enacts several Obama-era NLRB decisions that enable employees from different businesses to form a bargaining unit, enables micro-units, and gives employees the right to use the employer’s email for union organizing.
- Implements (AB) 5, which makes it very difficult for anyone to remain an independent contractor, forcing employee status.
- Allows secondary boycotts, which give union employees the right to boycott their employer’s business connections.
- Reinstates ambush/expedited election rules, reducing the time between filing a petition with the NLRB for a union election and the union vote.
- Reinstates the persuader regulation that requires public disclosure of the employer’s labor consultants and labor attorneys’ names.
- Bans Right-to-Work laws which will increase union membership and Unfair Labor Practices (ULPs) filings.
- Authorizes employees to use a private right of action when they believe their rights were violated, meaning employees can take employers to court.
- Reinstates the “poster rule” law that forces employers to post a “Notification of Employee Rights under the National Labor Relations Act” with failure to do so an automatic ULP.
- Provides civil penalties for labor law violations which will significantly increase the amount of damages awarded to employees and encourage more ULP charges.
- Requires binding arbitration for a minimum of two years for contract negotiations, making lengthy negotiations likely.
- Bans employers from permanently replacing strikers, meaning employers will have more difficulty maintaining productivity during a strike.
- Institutes “stealth” card check, enabling unions to secretly get 50 percent plus one employee signatures on union authorization cards and manipulate the system to get a bargaining order.
As mentioned, each provision of the PRO Act can be addressed in other ways. For example, should a single bill pass that eliminates right-to-work protections pass the House and Senate, the impact on some employers and employees will be significant. Right-to-Work laws have enabled many employers to increase competitiveness because employees have an option concerning the payment of union dues. The RTW laws have also contributed to economic development expansion in the relevant states. If the laws are superseded by national law, employees lose their right to decide, which will create some unhappy employees that employers must re-engage positively.
The comprehensiveness of the PRO Act is breathtaking and deeply troubling in that it shifts most rights to the unions and limits employers’ ability to resist unionization efforts.
2. Raise The Wage Act
In January 2021, the Raise the Wage Act of 2021 (H.R. 603) was passed by the House, and like the PRO Act, it must pass the Senate too. Passage in the Senate is not a sure thing, but phasing in $15 per hour minimum wage has been on the Democrat’s agenda for years.
The Raise The Wage Act has several provisions that will significantly impact employers who hire employees at minimum wage.
- Gradually increase the federal minimum wage to $15 per hour by 2025
- After 2025, automatically increase the minimum wage annually at the same rate that median wages increase (indexing)
- Gradually eliminate the lower wages allowed for youth, disabled, and tipped workers (an estimated 32 million workers would get wage increases)
The wage increases for the workers targeted will have several impacts. One, of course, is higher payroll costs. It will impact some or all of your other employees because increasing starting minimum wage will have a rolling impact by forcing increasing rates for employees as they work up a compensation scale.
For example, if you now pay $7.25 per hour for new hires and the next level pays $8.00, raising the minimum wage to $8.00 means the next level and those above it must increase.
Employers in several industries, including the restaurant and hospitality industries, have vigorously opposed the $15 per hour minimum wage for many reasons. One is that it will impede their ability to hire enough staff, which will significantly impact their business operations and an economic impact.
3. Congressional Review Act
The Congressional Review Act gives Congress the power to repeal, through legislation, regulations issued under the prior administration. As of February 4, 2021, a 60-day countdown began, which made April 4, 2021, the deadline to introduce resolutions. Both the House of Representatives and the Senate must approve the resolution, and as legislation, it also needs the President’s signature. Senate filibuster is not allowed.
There is no certainty the resolutions will pass this year, given the 50/50 party split in the Senate. However, like the PRO Act, knowing what the Democrats see as important gives employers like you a heads up on what issues they will face. This year, there are five Trump Administration rules targeted through resolutions.
One of them (S.J. RES. 13) involves the Equal Employment Opportunity Commission (EEOC). The resolution overturns an EEOC rule that establishes the process for settling claims the EEOC has already decided have merit. The EEOC rule is called the “conciliation” rule. The Senator and Representative introducing the resolution claim the conciliation rule makes it more difficult for employees to enforce their workplace rights, harms workers, and undercuts civil rights enforcement.
The conciliation rule is statutorily mandated and addresses a situation in which the EEOC has determined reasonable cause to believe an employer has violated an employment law. The investigation begins with a Charge of Discrimination filed by the employee. If the EEOC finds no reasonable cause, the employee has 90 days to file a lawsuit. If the EEOC finds reasonable cause, the agency must engage in conciliation efforts before filing an EEOC lawsuit. Changes to the conciliation process just went into effect on February 16, 2021, in response to a U.S. Supreme court case, and the updates require the EEOC to provide the employer more information about the claim, including a damage calculation and a summary of the legal basis for finding reasonable cause.
A Senate.gov press release explains the reasons the resolution to overturn the conciliation rule was introduced. The rule is viewed by some as anti-employee and favors employers in discrimination cases. The EEOC’s latest change to the rules is said to force the EEOC to adhere to a strict formalized process and strip the EEOC of flexibility to act in workers’ best interests. There is a belief among resolution supporters that the rule will lead to wasteful litigation that will only cause delays or deny victims of discrimination justice. Employers get “free discovery” and can identify the employees and witnesses, which increases the risk an employer can retaliate.
If the conciliation process is amended in favor of employees, you can likely expect the filing of more formal employee grievances via the EEOC.
4. Paycheck Fairness Act
- Limits an employer’s defense in a wage discrimination claim that a pay differential is based on factors other than sex to a requirement the defense be based only on job-related factors
- Enhances nonretaliation prohibitions
- Makes it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about wages
- Increases civil penalties for violations of equal pay provisions
- Requires the EEOC to issue regulations for collecting data – from employer’s compensation and employment records – according to sex, race, and national origin of employees for use in enforcing laws prohibiting pay discrimination
5. Biden Infrastructure Proposal
Though just a Presidential plan at this stage, the proposal includes many protections for unions. It proposes double the number of registered apprenticeships and requires companies using infrastructure funds to pay prevailing wages and stay neutral in organizing efforts.
Biden’s plan also calls on lawmakers to include a bill that strengthens workers’ ability to form unions and win contracts. “I support unions,” Biden said in Pittsburgh when introducing the plan. “They built the middle class, and it’s about time they got a piece of the action.”
Even if it doesn’t pass the Senate and become law, businesses need to be prepared for various provisions to show up in other bills.
Positioning Your Organization For The Regulatory Onslaught
Considering the whole set of proposed legislation, agency rules, and administration plans as a clear agenda, there are two overarching takeaways for employers:
1. Unions are strongly supported from this point forward. The current administration makes it clear they will use the federal government’s power to help unions grow their membership and gain more power in the workplace.
The following are some of the steps business leadership, beginning at the senior management level, should implement at this point:
- Make a plan to stay on top of the Congressional bills introduced and passed to avoid surprises and significant compliance issues (UnionProof will help!)
- Utilize a company like UnionProof to assist with customizing union-focused resources, like a live “dark website“
- Always be prepared for a rapid response(may or may not mean a rapid response team is formed) should unions get involved with the workforce and quickie election procedures are in place because an election could be held as quickly as ten days after a union petition is filed
- Develop an ongoing relationship with a labor law professional now rather than waiting for a workforce issue to arise
- Verify there your compensation schedule and benefits are bias-free
- Verify your compensation policies and procedures comply with federal and state laws and Department of Labor regulations
- Ensure a variety of communication channels are always active so that your managers have a means of discussing the effects of unionization on the workplace should mandatory meetings be banned
- Develop a strategy for quickly adapting to a union-friendly NLRB board which is likely to reverse many pro-employer rules adopted by the NLRB under the Trump administration
- Develop a strategy for tracking local union activity, especially at competitors in the same industry
2. Organizational leaders need training on the “new normal” in which the federal and many state governments strive to purposefully increase union membership. Their employee engagement skills must be top-notch. As union membership and influence have declined over the last decade, managers and supervisors have not kept as knowledgeable as they should about unions and responding to unions.
Here are some important considerations for your leadership in a pro-union environment.
- Assess the knowledge your managers and supervisors have about unions and their practices, i.e., the ability to recognize activities like the signs of organizing and common union organizing strategies
- Develop a strategy to close the leadership skills gaps in employee engagement
- Make the workplace resistant to unions through increased employee engagement efforts and improving the employee experience
- Increase employee opportunities to share concerns and for leaders to share information and provide feedback, i.e., all-employee meetings with senior and other leaders
- Make sure frontline supervisors and their managers have an open-door policy, so employees always feel like they have a voice
- Include remote employees, as well as in-facility employees, in engagement and open-door policies by utilizing technology
- Add a FAQ page to your union facing website that enables employees to share concerns and ask questions anonymously and make sure responses are posted
- Educate employees on the truths about unions and the benefits of working for your company, so employees don’t make decisions based on union promises and emotions, i.e., cost of unionization, union corruption, company benefits, etc.
- Make use of technology to train leaders, i.e. podcasts, online leadership training courses, etc.
- Make use of a variety of communication channels to ensure all employees of all generations are engaged, i.e., social media, podcasts, Zoom meetings, videos, etc.
- Ensure your leaders check-in regularly with employees via technologies like pulse surveys
- Utilize dashboard analytics to pinpoint emerging workforce issues, i.e., high turnover in a particular business area or a high number of employee grievances filed with Human Resources concerning a department, company policy, supervisor, etc.
Be PROactive About The PRO Act
Developing positive employee relations is crucial for being proactive about the PRO Act and the other pieces of legislation discussed. It may seem nearly impossible to stay union-free in such a setting. Take heart!
Through experience working with companies during similar times in the past, UnionProof knows that focusing on positive employee relations, taking all the steps recommended to stay informed about unions, and being prepared to respond quickly to union activity is the best way to prevent unionization. It’s your leaders who keep your organization union-free. Invest in leadership training because the cost of unionization far exceeds the cost of training. Projections, Inc. offers all the resources you need to educate leaders and staff, address potential unionizing and strive to remain union-free.