Don’t all workers deserve a ‘good day?’ Pass the PRO Act

Last Friday morning, as I headed into a meeting with worker center organizers on how government can help lift workers’ voices, I heard a man on the street turn to his companion and say: “Have a good day. Stay safe.”

We hear people saying that multiple times every day, especially since the pandemic struck. But on that particular day, those words had a special resonance. What would it take for all the workers hanging sheetrock or cleaning hotel rooms or packing seafood to “have a good day?”  And how many of them are really able to “stay safe?” 

I spent my career as a lawyer at the Department of Labor (DOL) trying to ensure that employers at least complied with the minimum standards required under laws that include the Fair Labor Standards Act (FLSA) and the Occupational Safety and Health Act (OSH Act). But despite best efforts, with the limited resources available for the department’s enforcement activities, it’s been unable to come anywhere close to assuring workers actually obtain the rights they’re entitled to under the laws it oversees — like minimum wage and overtime pay, a safe workplace and protection from retaliation. And, frankly, the laws DOL enforces — flawed as they are — couldn’t deliver a really “good day” even if employers complied with them.

This is why the PRO (Protecting the Right to Organize) Act, is so desperately needed in this moment. The bill, passed by the House with bipartisan support on March 9 and discussed in a Senate Committee on Health, Education, Labor and Pensions hearing last week, is a long-overdue reworking of the National Labor Relations Act (NLRA) of 1935. The NLRA’s over-arching purpose, as originally enacted, was to encourage collective bargaining by granting employees the right to form or join unions and to engage in protected, concerted activities to improve working conditions. Those rights have been seriously compromised by a combination of federal and state laws, administrative and judicial decisions, and a decades-long corporate/employer campaign to undermine unionization in this country. 

Consequently, private-sector membership in unions decreased from almost one-quarter of all workers in 1973 to hardly 6 percent in 2018. Not coincidentally, skyrocketing income inequality — since 1978 CEO compensation has risen 940 percent, compared to a 12 percent increase in typical worker pay — tracks to the decline in union density.

Meanwhile, when nonunion workers were asked in 2017 what they think about unions, 48 percent said they would vote to form a union at their job if given the chance.

The PRO Act aims to restore that opportunity, with a host of provisions designed to counter the many ways workers are discouraged from engaging in meaningful collective action.  

These include banning employer interference in union elections, with tactics like “captive audience” meetings — where employers require workers to attend meetings where anti-union messaging is presented without a chance for union rebuttal — and eliminating election delays by having employees and the National Labor Relations Board (NLRB), not the employer, set the date. Once a union is certified, quick movement toward an agreement, or a mediated resolution, is required.

Companies that violate the law would face civil penalties, which they currently do not, and corporate directors and company officials could be held personally accountable for transgressions. If fired, employees would be reinstated while their case was pending. And workers could file their own civil action against their employer for such violations if the NLRB declines to. These are significant, necessary new incisors in what has become a relatively toothless law.

Erosion of the traditional employee-employer relationship through subcontracting, franchising and claiming that employees are “independent contractors,” is among the tools corporations have used to sidestep unionization. These tactics are mitigated in the PRO Act by making clear that companies that retain the right to control workers, even if not exercised, would be deemed “joint employers” and covered by the law’s requirements. It also adopts the “ABC test,” significantly restricting who employers can treat as “independent contractors” and hence expanding the coverage of the act to particularly vulnerable segments of the workforce who would be otherwise unprotected.  

There’s more. State so-called “right-to-work” laws barred unions from collecting “fair share” fees to cover the costs of bargaining, contract administration and grievance processes that unions are required by law to undertake on behalf of all (union and nonunion) members of a collective bargaining unit. The PRO Act undercuts these union-hobbling laws by allowing labor and management to negotiate about collecting these fees from employees who don’t join the union, but who still benefit from its contract negotiations and collective bargaining.

And, the PRO Act would assure workers access to the tool that perhaps most effectively mitigates the inherent power disparity between them and their employer: the right to strike. It would bar employers from threatening, or acting to permanently replace striking workers, and would enhance workers’ First Amendment rights by removing prohibitions on their expressing solidarity with workers in other companies. Additionally, it would prevent employers from requiring employees to waive their right to engage in collective or class action litigation.

It’s quite a list. Each of these provisions of the bill is important in its own right, and together they’ll go a long way toward leveling the employer-employee playing field. Moreover, when union density is high, nonunion workers benefit because unions effectively set broader standards — including higher wages and safer, better working conditions that nonunion employers need to meet in order to attract and retain the workers they need. And all workers who act together to improve their working conditions benefit from the law’s protections, whether they want to join a union or not.

This brings us back to the question of what it would take to help all workers in this country “have a good day?” By removing a slew of obstacles to worker empowerment, offering new safeguards for collective action, expanding the scope of who is a protected “employee,” and honoring the principle that hard-working immigrants regardless of status all deserve protection, its passage would raise all ships — whether the flag they fly is blue or red or purple. That’s why, for millions upon millions of workers in this country, the day the PRO Act is passed will long be remembered as a very good day

Michael Felsen enforced federal worker protection laws, including OSHA, as an attorney with the U.S. Labor Department’s Office of the Solicitor, concluding a 39-year career as New England regional solicitor from 2010-2018. He is currently an Access to Justice fellow with Justice at Work in Boston.