House Passes Protecting the Right to Organize Act
- Drastically expanding damages, fines, and civil penalties for Act violations, including to unauthorized aliens;
- Allowing parties to negotiate collective bargaining agreement provisions requiring employees to pay union dues or face termination, even in right-to-work states like Texas;
- Prohibiting employers from permanently replacing strikers and locking out employees;
- Expanding the definition of “joint employer” to cover where an entity’s control over employees is indirect or reserved; and
- Narrowing the definition of a “supervisor” to make it more difficult for an employer to classify its front-line supervisors and management as exempt from unionization.
The PRO Act passed in the House on March 9 with little bipartisan support, has the support of President Biden, and is awaiting a vote by the Senate.
The bill is not without its criticisms, though, even among pro-union activists. A critical, and controversial, aspect of the bill passed by the House is that it adopts California’s “ABC” test for determining whether an individual is an employee or an independent contractor. According to the bill:
“An individual performing any service shall be considered an employee and not an
independent contractor, unless --
- (A) The individual is free from control and direction in connection with the performance of the service, both under the contract for the performance of service and in fact;
- (B) The service is performed outside the usual course of the business of the employer; and
- (C) The individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.”
Critics contend that subsection (B) could cripple the successful freelance industry in the ever-expanding gig economy while proponents argue the Act is narrowly concerned with whether workers possess rights under the Act and that does not mean a freelancer will automatically lose work or be pressured into unionizing.
To address concerns from freelancers, independent contractors, and small businesses, an amendment has been proposed to require the Government Accountability Office to prepare a report on the impact of the changes made by the bill to the definition of “employee” under the ABC test and the definition of “joint employer” under the NLRA. The president would be required to consider the report and recommend Congress to modify the definitions if needed.
Because ten Senate Republicans would need to support it, whether the bill will pass is uncertain, and the conversation around the PRO Act has evolved more broadly into a debate around abolishing the filibuster, as a Republican filibuster to block the Act’s passage is virtually certain. A similar bill previously passed the House in 2020, but the then-Republican-controlled Senate did not take up the bill.
House and Senate Pass the Butch Lewis Emergency Pension Plan Relief Act
The bill, named after pension activist Butch Lewis, who died early in the campaign, was the product of an eight-year fight that began in 2013 when the Central States Pension Fund began signaling that it thought the law needed to be changed to allow cuts to maintain solvency. The fund, along with labor leaders from the Teamsters and Building Trades unions, launched a lobbying organization called “Solutions Not Bailouts” that advocated for fundamental change to U.S. retirement law.
Part of the issue that led to the pension fund crisis lied with hedge fund companies and Wall Street players mismanaging the funds. Although EPPRA does not directly prohibit these riskier investment strategies, it does require that federal distributions into the underfunded pensions be invested in low-risk investment grade bonds.
- Be in critical and declining status;
- Have previously imposed a benefits suspension under the Multiemployer Pension Reform Act of 2014;
- Be in critical status, have a modified funded percentage of less than 40 percent on a current liability basis, and have a ratio of active to inactive participants of less than 2 to 3; or
- Be insolvent.
The law does not state how the financial assistance will impact a contributing employer’s withdrawal liability. The House bill stated that employer withdrawal liability would not consider any special financial assistance for 15 years after a plan received assistance, but the Senate removed this provision to avoid a procedural violation under the reconciliation process.
For the millions of retirees whose monthly pension was set to have gone insolvent by 2025, however, the Act comes as a momentous relief.
Were you fired unfairly?
We're here to help.