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How the PRO Act Would Affect Non-Union Workplaces

Elizabeth Newman

On March 9, 2021, the House of Representatives passed the Protecting the Right to Organize (“PRO”) Act by a vote of 225-206. If signed into law, the PRO Act would be the most significant labor law reform in decades. The bill primarily amends the National Labor Relations Act, the federal law that governs collective bargaining in the private sector. Most of these changes affect the rights of unions, but the bill also contains several important provisions that would affect employees outside of the union context.

Restoration of Collective Action Rights

Currently, an employer can require employees to sign away their rights to collective litigation of employment-related claims. These agreements typically mandate that any claims arising out of employment go to private, individual arbitration instead of court. These “collective action waivers” have had a particularly chilling effect on wage claims. Claims involving unpaid wages and overtime are often too small to bring individually, as court costs and legal fees can easily outweigh the lost wages. Wage claims are therefore far more feasible—and far more powerful—if brought together. Collective action waivers in mandatory arbitration agreements deter employees from bringing these claims by forcing them to shoulder arbitration and legal fees by themselves. This in turn diminishes the power of employees to enforce their rights as workers.

Employees challenged collective action waivers in mandatory arbitration agreements as a violation of their rights under Section 7 of the NLRA. Section 7 guarantees employees the right to engage in concerted activity for mutual aid or protection—the same section that protects the right to organize and unionize. But in 2018, the Supreme Court held that collective action waivers were enforceable in spite of Section 7 (Epic Systems Corp. v. Lewis).

The PRO Act would change that. It would ban class and collective action waivers by making it an unfair labor practice for an employer to attempt to enforce them. This reform would restore the right of employees to pool resources and band together to pursue their legal claims.

Protecting the Use of Company Email for Employee Communication

The National Labor Relations Board has gone back and forth about whether employees can use their employer’s email service to engage in concerted activity. In 2007, the Board found that employers have an overriding right to control their email services and how employees use it. In 2014, the Board changed its mind and decided that employees must be allowed to use company email during non-working time to communicate with one another about workplace issues. The PRO Act would codify this latter rule. As a result, an employer would not be permitted to discipline employees for using company email to discuss pay, benefits, and other terms and conditions of employment. This reform would make it easier for employees to communicate and organize in office and remote work settings, as well as across different shifts and locations.

The Senate has not yet set a date to vote on the PRO Act. The bill will have an uphill battle as long as the filibuster remains intact. If you would like to learn more about how the PRO Act would affect you in your workplace, please get in touch with us.

 

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