The Pro Act and What Employers Should Know About the Infrastructure Bill

April 21, 2021
Inside HR
HR Compliance
Employee & Labor Relations
Read time: 3 mins

One large piece of legislation that currently awaits a vote is President Biden’s Infrastructure Bill. This bill has a large price tag and is very literally named. Created to improve the country’s infrastructure, it includes a two-pronged approach to restore the economy and empower families.

The PRO Act, or Protecting the Right to Organize, is tucked within the Infrastructure bill under the empowerment focus and is designed around one of President Biden’s campaign promises to support organized labor. First introduced and passed by the House in February 2020, it now has a second life and has, once again, passed the House.

There is strong support to pass the PRO Act this time around, and it seems as if the Senate’s filibuster rule is the bill’s biggest obstacle. Despite the support, it includes some controversial amendments to the National Labor Relations Act that have the opposition of several groups including the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, and franchise owners. Whether passed as part of the Infrastructure bill or as a stand-alone bill, it will change the scope of organized labor if passed.

Employers should be aware of the more prominent provisions being proposed, including:

  • Revised definition of supervisor to broaden the scope of individuals covered by FLSA.
  • The joint-employer definition will expand to include any direct or indirect control.
  • Job protection for striking workers and secondary boycotts are permitted.
  • Right-to-Work laws would be removed.
  • Whistleblower protection would be provided for employees raising unfair labor practice claims.
  • “Captive audience speeches” designed to discourage union membership will no longer be allowed.
  • Newly formed unions may seek arbitration to help settle impasses in contract negotiation.
  • Election time frames may be shortened and voting may be done by phone or Internet.
  • Employers will be required to provide contact information to union organizers for all union-eligible employees within 48 hours of an election.
  • Employees will be permitted to use company communication to organize and communicate union activity (email, bulletin boards, intranet, etc.)
  • Independent contractors, freelancers, and gig workers would need to pass the California-modeled ABC test to maintain that status. Employees unable to pass the following three criteria will be considered employees and able to join any governing unions. 
    1. 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;
    2. The service is performed outside the usual course of the business of the employer; and
    3. 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.

The ABC test seems to carry the largest opposition from independent contractors and self-employed workers. It is also felt that removing the Right-to-Work law and requiring employers to provide employee contact information prior to an election may infringe upon employee rights.

MRA is watching this legislation closely and will communicate further outcomes, as well as assist members with resources to help front your efforts.