PRO Act Reloaded by Biden Administration and Congressional Democrats - American Society of Employers - Michael Burns

PRO Act Reloaded by Biden Administration and Congressional Democrats

U.S. Capital with flagAs stated previously in EPTW, the Biden Administration is moving fast to rewrite the Trump Administration’s labor policy and regulations. Following the quick replacement of key Trump era National Labor Relations Board personnel, last week Congressional Democrats in the U.S. House and Senate re-enrolled the Protecting the Right to Organize Act, (PRO). It had been previously passed in the House last year but went no further. Unlike the often temporary regulatory and decision-based policy changes driven by the National Labor Relations Board, this act, if passed, would make fundamental, long lasting and most importantly, pro-labor changes to the law.

All employers should keep in mind, the National Labor Relations Act (NLRA) is not just a union applicable law. In fact, because it applies to non-union employers as well, it can be used to compel change to non-union employer’s employment policy and rules, giving workers and union organizers a potent lever against an employer they perceive as an organizing target or just a bad example to other employers and workers that they want to confront.

Where does the NLRA impact non-union employers? Handbook policy statement and rules, individual arbitration agreements, use of employer electronic communications systems, and of course remaining union free.

What will the PRO act do if passed? For the first time in decades, it would change 50 well established terms of the National Labor Relations Act (NLRA).

“The PRO Act would:

  • Effectively overturn state ‘right to work’ laws
  • Codify the “ABC test” to deem independent contractors “employees” covered by the NLRA 
  • Limit the ability of employers to contest union election petitions and allow unions to engage in coercive tactics long held to be unlawful
  • Restrict the ability of employers to obtain labor relations advice
  • Facilitate union organizing in micro-units
  • Redefine the definition of ‘supervisor’ to include more frontline leaders as ‘employees’ covered by the NLRA
  • Change the definition of ‘joint employment’ and force businesses to alter their structures or face liability
  • Give employees the right to utilize employer electronic systems to organize and engage in protected concerted activity
  • Prohibit employers from using mandatory arbitration agreements with employees
  • Force parties into collective bargaining agreements via interest arbitration
  • Expand penalties for violations of the NLRA”

                        Littler Insight newsletter 2/10/2021

Specific to Michigan’s employers our state’s Right to Work law that allows workers to challenge their union’s quality of service by opting out of the union and to not pay union dues, would be overturned.

A myriad of accepted non-union employment policies will be prohibited. Starting with the employers right to control its own communications systems. Under the PRO Act union organizers will have the right to access and use employer email and other communications system to speak to their employees. Employers would be compelled to turn over employee information including home address, home phone number, cell phone numbers, and personal email addresses. Employers would also lose the right to communicate (freedom of speech) directly with employees to express employer views on unionization. Further employers would be restricted from obtaining legal counsel during an organizing campaign by virtue of enacting the pro-labor “persuader rule.” This rule requires employers to complete onerous reports for any fees paid for labor advice and services received from their own attorneys. It would now be incorporated into law.

The PRO act would also take aim at new ways to determine joint employment and who is an employee. The PRO Act would re-adopt the NLRB’s Browning Ferris test for determining joint employers if two separate employers “share of codetermine” control over worker’s terms of employment. This is the Franchisee-franchisor joint employer situation.

The PRO Act also adopts the “ABC test” that would find an independent contractor only if:

“(A) the individual is free from the employer’s control 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.”

2021 Todd Lebowitz,, Exploring Issues of Independent Contractor Misclassification and Joint Employment.


The PRO act is the culmination of years of previous attempts to change policy and regulation that failed when a pro-business administration took over. This legislation would change the NLRA to a pro-labor law upsetting the “balance” the NLRA has attempted to put in place to promote worker’s rights to join or not to join a union.

Under this new law, non-union employers would also be prohibited from entering into arbitration agreements with their employees. In 2018 the U.S. Supreme Court upheld the primacy of the Federal Arbitration Act (FAA) over the NLRA and held entering into arbitration agreements was protected by the FAA.

This law would also add significant monetary penalty damages to findings against an employer. Currently labor law seeks to resolve unfair labor practices through equitable and/or monetary damages intended just to make the worker whole. The PRO act would add enhanced back pay, liquidated damages, and the right to initiate a private causes action as well.

As stated in last week’s EPTW, employers that are at risk of union organizing should be looking to shore up their employee relations activities. ASE can help. If you are unsure of your pay structure, ASE can help install a competitive pay program. If you do not have open communications with your workers where they are comfortable providing you feedback on important employee relations issues, ASE can assist with employee opinion survey and employee engagement instruments. And if you have weak front-line leadership, ASE can educate your supervisors and managers on how to effectively lead and avoid creating negative employee relations.


Additional ASE Resources
ASE members have access to many resources important to employers for avoiding unionization. They include:

Compensation Surveys & Consulting – ASE members receive free benchmarked compensation data which provides them the data necessary to make competitive pay decisions. To participate in the 2021 compensation surveys open now, please contact the ASE survey team for your personalized link.  In addition, we offer compensation consulting which allows members to review pay for both competitiveness and equity. For more information on compensation consulting, please contact Kevin Marrs.

Employee Engagement Surveys – ASE offers employee engagement and opinion surveys that allow you to keep a pulse on employee sentiment. For more information, please contact George Brown

Supervisory and Leadership Training – ASE offers numerous resources for supervisory and leadership training.  Our training program offers over 65 unique courses. View the course catalog here. We can also customize a program for your organization. To discuss a custom program or course, contact Tony Kaylin.



Sources: Littler Insight newsletter, PRO Act Would Upend U.S. Labor Laws for Non-union and Union Employers Alike 2/10/2021; 2021 Todd Lebowitz,, Exploring Issues of Independent Contractor Misclassification and Joint Employment.

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