On Friday, April 9, 2021, the AFL-CIO—the largest federation of unions in the United States—led a national day of action to urge U.S. Senators to back the Protecting the Right to Organize Act, or “PRO Act.” The PRO Act has already passed through the House of Representatives, but does not presently have the 60 votes necessary to pass through the Senate. Given entrenched Republican opposition to the proposed law, passage of the PRO Act will almost certainly require Democrats to modify or abolish the filibuster.
The PRO Act has garnered significant media attention of late, largely focused on the expansion of collective bargaining rights and repeal of so-called “right to work” laws. However, the legislation stands to benefit not only unionized labor, but also the rest of the nation’s workforce. By way of example only, the PRO Act would prevent employers from holding citizenship status against employees and expand the definition of “supervisor” under federal workers’ rights laws. While the provisions of the PRO Act are too voluminous to summarize in full here, three major changes to existing employment (as opposed to labor) law stand out:
1. The PRO Act would broaden the joint employer standard, which determines when two or more employers are jointly responsible for the same employees. Specifically, it expands the definition of “joint employer” to include entities that exert direct or indirect control over workers. This would be a significant change in course given the gradual tightening of the standard over the last several years, as well as the Trump Administration’s failed effort to overhaul it entirely to the benefit of businesses.
2. It would codify the “ABC Test” articulated by the California Supreme Court, which creates a legal presumption that workers are “employees” entitled to the protection of wage-and-hour laws, and imposes a very high burden on employers to prove otherwise. As private interests continue their push to classify their workforces as independent contractors—and, in doing so, avoid paying overtime and other compensation required for employees—this would be an extremely consequential shift in the law.
3. The legislation would effectively overturn the U.S. Supreme Court’s decision in Epic Systems v. Lewis, which affirmed the enforceability of class and collective action waivers in arbitration agreement. This would restore millions of workers’ rights to have their day in court following a dispute with their employers.
While the fate of the PRO Act it yet to be decided, one thing is certain: it would massively expand the rights of not only labor, but all workers across the country.
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Faruqi & Faruqi, LLP focuses on complex civil litigation, including securities, antitrust, wage and hour, personal injury and consumer class actions as well as shareholder derivative and merger and transactional litigation. The firm is headquartered in New York, and maintains offices in California, Delaware, Georgia and Pennsylvania.
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About Alex Hartzband
Alex Hartzband's practice is focused on employment litigation. Alex is a senior associate in the firm's New York office.
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