Sen. Robert A. Taft, our firm’s namesake, introduced the Taft-Hartley Act in the Senate. The act was drafted by former Taft partner, Mack Swigert, and passed in 1947. Therefore, we take note of the Biden Administration’s goals to change the rules and norms enacted into law in the Taft-Hartley Act of 1947, which is the current Labor Management Relations Act.
The new administration has expressed plans to change a number of labor and employment rules, including:
- Enhancing OSHA enforcement of violations causing or contributing to COVID-19 related illness at work.
- Allowing the NLRB to award back pay, front pay, and consequential and other damages to employees for unfair labor practices.
- Allowing unions and employees greater powers to strike.
- Requiring nonunion members in right-to-work states to pay a fair-share-fee to cover collective bargaining costs.
- Allowing independent contractors to bargain collectively.
- Increasing penalties for misclassifying employees.
To date, none of these changes have been passed into law.
One of the bills devoted to strengthening unions and, conversely, further restricting an employer’s right to protect its ability to operate profitably during such efforts is the Protecting the Right to Organize Act (PRO Act). The House reintroduced the PRO Act at the beginning of February 2021. Some of the act's features include: (a) broadening the definition of employer to broaden the NLRA’s coverage, (b) reducing limits on secondary boycotts, and (c) prohibiting employers from educating their employees on the benefits and burdens of organizing.
We will focus on the secondary boycott issue. Currently, if a union is conducting a picket outside of a retail establishment, for example, to inform the public that a contractor hired by the retailer is paying non-union, substandard wages to its workers, the picket cannot prohibit or prevent patrons from entering the store. The new bill would serve to further restrict employers from taking measures to curb such secondary boycotts by the union so patrons can easily access their establishments during such a picket. This is especially relevant during a time when retailers are struggling to encourage personal visits to their establishments.
The PRO Act also addresses the status of independent contractors—such as gig workers at ride-hailing and food delivery companies—by lowering the bar for contractors to prove they are employees under federal labor law. That would allow gig workers to organize unions and protest retaliation under the NLRA—rights currently guaranteed only to employees, not contractors.
However, from a historical perspective, the PRO Act has little chance of becoming law without the elimination of the filibuster in the Senate.