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For the last couple of years, this blog has written numerous times about the Protecting the Right to Organize (PRO) Act, which is the wish list of onerous policies that labor unions and their allies hope to pass. Their objective is to hamstring employers and facilitate union organizing efforts in the hope that it will help labor unions reverse a 65-year downward membership trend. Some employers may be tempted to think that if they do not have a union or don’t consider themselves a likely target for organizing, the PRO Act won’t impact them. Suffice it to say, nothing could be farther from the truth.
While this legislation may seem obscure—or even not relevant—to some businesses, there are specific provisions that would impact all employers, regardless of whether they ever become the target of a union organizing campaign. For one thing, the PRO Act would make it an unfair labor practice to include mandatory arbitration clauses in employment agreements, something many employers do to avoid unnecessarily expensive litigation in employment disputes. These clauses are widely used, and each agreement with an individual employee could form the basis of a separate Unfair Labor Practice charge (ULP).
Under the PRO Act, ULPs would include significant penalties of up to $100,000 per violation. And these penalties can be levied personally on individual company officers or directors. These penalties would apply even if you are never the target of a union campaign. Making matters worse, anyone can file a ULP—it doesn’t have to be an employee. Unions, and just about anyone else, could have a field day filing charges against any employer using arbitration clauses and watching those companies and their officers and directors get hit with penalty after penalty.
Likewise, the PRO Act requires employers to allow employees to utilize an employer’s technology “including computers, laptops, tablets, internet access, email, cellular telephones, or other company equipment” for engaging in so-called “concerted activity.” This would mean workers could use your systems to talk to one another about wages, benefits and working conditions, and if you tried to limit that activity and maintain control over your technology, a ULP could follow—again with massive penalties—even if the business was never the target of an organizing campaign.
Employers who engage the services of independent contractors might think the PRO Act is of little relevance to them, but they too would be mistaken. That’s because the PRO Act adopts California’s restrictive “ABC” test for determining employment, which would make many of those independent contractors employees with respect to labor law. Thus, many independent contractors would suddenly be covered by the National Labor Relations Act (NLRA), and able to file ULPs related to concerted activity and arbitration clauses.
Finally, because of the PRO Act’s language authorizing secondary activity, unions would have incentives to drag businesses that are not the actual target of an organizing effort into a campaign against their actual target. Let’s say you are provide food supplies to a hospital that unions wish to organize. The union may figure that the hospital can’t function without food deliveries, so they decide to picket at your company to pressure you to stop doing business with the hospital. In this way, the hospital might be forced to the bargaining table. But your company, which was not the unions actual target, is simply collateral damage.
To put things simply, the PRO Act would affect practically every employer in the country, and the business community must focus its efforts to make sure lawmakers know how bad this bill is. The opening line to The WHO song Why Should I Care asks, “Was there something more I could have done?” All employers should vocally oppose this bill and ensure that the answer to that question is “no.”