Unions and Labor Standards

How the PRO Act restores workers’ right to unionize: A chart of the ways the PRO Act fixes major problems in current labor law

Nearly half of all nonunion workers say they want a union in their workplace, yet only 12% of all workers are actually represented by a union.1 Current law places too many obstacles in the way of workers trying to organize and gives employers too much power to interfere with workers’ free choice.

[Related: PRO Act at a glance]

The Protecting the Right to Organize (PRO) Act rectifies this. The chart below lists some of the major problems in current labor law and how the PRO Act addresses them.

The Protecting the Right to Organize (PRO) Act expands workers’ rights on the job: Examples of loopholes in current labor law and how the PRO Act closes them

Problem with current labor law  PRO Act solution
Under current law, employers can drag out the union election process—the process by which workers form a union at their workplace—through litigation at the National Labor Relations Board (NLRB). The NLRB is the principal government agency responsible for enforcing the rights of private-sector workers to organize and engage in collective bargaining with their employers—but current law is preventing them from doing their job, by giving too much power to employers, who are able to use delay tactics to postpone elections while they campaign against the union. Under the PRO Act, workers and the NLRB set union election procedures. The employer is not involved.
Employers have free rein to make their employees attend “captive audience” meetings—where the employer delivers anti-union messages without giving the union an opportunity to respond. The PRO Act prohibits employers from forcing workers to attend captive audience meetings.
Under the current system, workers can wait months and even years to be reinstated or receive back pay after being unlawfully discharged by their employer for joining together with their co-workers to improve their wages and working conditions. Workers’ rights to do so are protected under the National Labor Relations Act (NLRA)*—but that hasn’t stopped employers from retaliating, and the system isn’t set up to enforce workers’ rights in a timely manner. The PRO Act requires the NLRB to go to court and get an injunction to immediately reinstate workers if the employer has illegally retaliated against workers for union activity.
Employers who violate workers’ rights under the NLRA face no civil penalties. Under the PRO Act, employers who commit violations under the NLRA face civil penalties, and corporate officials can be held personally liable for violation of the the law.
Workers are prohibited from bringing civil lawsuits against their employer for violating their NLRA rights. The PRO Act gives workers the right to file a civil action against their employer.
Employers are allowed to force workers to sign arbitration agreements—often buried in a stack of paperwork they sign on their first day of work—in which the workers waive their right to collective or class action litigation. Collective and class action waivers are banned under the PRO Act.
Employers can misclassify workers as independent contractors—depriving those workers of the rights they would have as employees—without violating the NLRA. The PRO Act makes employee misclassification a violation under the NLRA and requires employers to follow an “ABC” test for employee classification. An ABC test is a strict legal test for making sure employees are not misclassified as independent contractors.
Multiple employers are able to dictate workers’ terms of employment while evading collective bargaining with employees—a growing problem as employers outsource various functions to contractors and subcontractors. Under this system, each employer is likely to shift responsibility to the other employer(s). The PRO Act codifies a strong joint-employer standard—meaning all firms that share control over a worker’s terms of employment are considered to be employers of that worker and are thus required to bargain with employees.
States may have “right-to-work” laws that undermine unions’ ability to collect “fair share fees” from workers whose interests they represent. Fair share fees cover the costs of bargaining, contract administration, and grievance processes that unions are required by law to undertake on behalf of all (union and nonunion) members of a collective bargaining unit. Without fair share fees, union power degrades quickly—which is exactly what anti-union employers want. States must allow private employers and unions to enter into “fair share” agreements.
Employers can drag out the process of bargaining over a first collective bargaining agreement. The PRO Act requires employers to follow a process for reaching a first agreement when workers organize, a process that uses mediation and then, if necessary, binding arbitration, to enable the parties to reach a first agreement in a timely manner.
Workers face limits on their fundamental right to strike. The PRO Act prohibits employers from permanently replacing striking workers, bans the use of offensive lockouts, and removes prohibitions on secondary activity.

Note: *Specific activities protected under the NLRA are detailed in “What’s the Law?” on the NLRB website.

Source: Authors’ analysis of current labor law and the Protecting the Right to Organize Act of 2021.

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For more on the comprehensive set of reforms in the PRO Act, see the EPI fact sheet Why Workers Need the Protecting the Right to Organize Act.

Note

1. Celine McNicholas, Heidi Shierholz, and Margaret Poydock, Union Workers Had More Job Security During the Pandemic, but Unionization Remains Historically Low: Data on Union Representation in 2020 Reinforce the Need for Dismantling Barriers to Union Organizing, Economic Policy Institute, January 2021.


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