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How the PRO Act Could Affect Construction

On February 4, Democratic lawmakers introduced the Protecting the Right to Organize (PRO) Act to the U.S. Senate. The House of Representatives passed the bill a year ago on February 6, 2020, but the labor rights bill did not stand a chance in the then Republican-controlled Senate. Now that the Senate is more evenly divided, Democrats hope to pass the PRO Act into law.

If passed, the bill would significantly revise the National Labor Relations Act (NLRA), making it easier for unions to organize more workers, removing many restrictions on union strikes, weakening employers’ options for resisting unionization, and levying penalties and fines on employers who are found to have violated the law.

The Worker and Employer Relationship

The bill calls for revising the term “employee,” which broadens the spectrum of individuals covered by the Fair Labor Standards Act. Specifically, that move provides higher wages, union representation, and benefits to workers previously categorized as independent contractors. As defined by the PRO Act, workers would be classified as employees unless they are under no control or direction from the employer.

The legislation also redefines “joint employer.” As it now stands, contractors using multiple workers from various subcontractors on a job site are liable only if they have control over these workers. If this bill passes, employers would be liable with only potential or indirect control.

Given the construction industry’s unique employment model — often with various workers, contractors, and subcontractors on job sites — if this bill becomes law, construction companies will be required to assume more responsibility for every worker involved.

Union and Strike Provisions

Currently, 27 states have “right-to-work” laws. The PRO Act would ban these laws, which prohibit union security agreements. Without right-to-work laws, labor unions and employers use collective bargaining agreements to determine how much unions can pressure workers to join them and thus pay union dues.

Under the PRO Act, more workers (including supervisors) would be allowed to vote in elections to certify union presentation. And if such a vote does not pass, the union can appeal the result to the NLRB. If the NLRB uncovers employer violation or interference in the process, the union can overturn the result by securing signed authorization cards from a majority of the voting employees. Some employees could feel pressured by the unions if they feel compelled to sign these cards.

The PRO Act would allow for slow-down strikes, intermittent strikes, and partial strikes. It would also allow for secondary strikes and boycotts, meaning that employees could strike against other companies and employers to protest their doing business with non-union companies. Any and all picketing would be protected on all construction sites.

Any employers found in violation could face hefty fines, including $50,000 for unfair labor practices and $10,000 for not following NLRB orders.

Support and Opposition

Construction trade unions across the country support the legislation, asserting that the bill would empower American workers by providing benefits they have not had previously.

However, Associated Builders and Contractors, the Associated General Contractors of America, and other professional associations oppose the legislation. According to statements from these associations, the bill could drastically change the way construction does business and would be cost-prohibitive for most employers.

What to Expect

It is not clear if the Senate will pass the bill. With Vice President Harris as the tie-breaker, the Democrats hold a one-vote majority, but Republicans could filibuster. That would require 60 senators to support moving the bill to a vote, which is highly unlikely.

Even if the Senate halts the PRO Act, lawmakers could still incorporate some aspects of the bill into other legislation. Given the priorities of the Biden Administration, construction companies and workers could see many union- and employee-related changes in the months to come.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.