House Committee Passes Major Labor Law Rewrite

September 27, 2019

The House Education and Labor Committee passed by a 26 to 21 party-line vote the Protecting the Right to Organize Act ("PRO Act," H.R. 2474), which if enacted would be the most dramatic rewrite of labor law since the passage of the Taft-Hartley Act in 1947.

Among many drastic, pro-labor changes, the PRO Act would:

  • Codify the controversial Browning-Ferris Industries joint employer standard that has since been overturned by the National Labor Relations Board;

  • Eliminate long-standing protection of neutral employers from being pulled into other employers' labor disputes—a key component of the 1947 Taft-Hartley Act;

  • Expand the definition of employee status/narrow definition of independent contractor status under the National Labor Relations Act ("NLRA"), codifying the problematic "ABC" test established by the California Supreme Court;

  • Resurrect the "card check" process by which employees can be forced into union representation without a secret ballot vote;

  • Levy monetary damages for unfair labor practice charges; and

  • Preempt state right to work laws.

During the markup session, four key amendments to the bill were adopted by committee vote:

  • Misclassification of employee status would be a violation of the NLRA;

  • NLRB elections could be conducted on or off the work location, electronically, or via mail ballot;

  • Extension of penalties to violations of employee rights beyond those causing serious economic harm, such as threats or refusals to bargain; and

  • Prohibition of lockouts by employers.

Over 30 GOP amendments were offered to strike the most radical provisions during the seven-hour markup to create a record of opposition and help frame the upcoming debate on the House floor -- all of them defeated on party-line votes 

HR Policy action:  HR Policy Senior Labor and Employment Counsel Roger King testified against the measure at a committee hearing this summer.

Outlook:  The bill will likely be considered by the full House this fall, where the votes of more centrist Democrats will be watched closely.  It is extremely unlikely that the PRO Act will get any Republican support, making passage through the Senate equally as unlikely.  Nonetheless, the bill's support among Democratic lawmakers (the bill has more than 200 sponsors) and its subsequent movement in the House should be of concern to employers, particularly given the increasing uncertainty clouding the 2020 election cycle.  Several Democratic 2020 Presidential contenders, including Sen. Bernie Sanders and Sen. Elizabeth Warren, have cosponsored the legislation in the Senate.  Thus, while the PRO Act is unlikely to become law anytime soon, it is likely to resurface—in current form or otherwise—in coming years.