I Have Management Questions For A Management Lawyer.

Please note: Sending us an email will not make you a client of our Firm. Please do not send us confidential information or sensitive materials through this form.


The Federal PRO Act: Pipedream or Top Agenda Item?

On Tuesday, Joe Biden delivered the State of the Union Address, touching on topics from social security to infrastructure. Many believe Biden’s State of the Union Address was a soft launch of his re-election campaign. Everything in the speech, many say, was carefully curated to inform voters of Biden’s top-of-the-agenda items. That is why we stopped in our tracks when we heard the words, “The PRO Act.”

For those who are unfamiliar, the PRO Act would be the most significant pro-union labor law reform in the United States since World War II. The PRO Act drastically expand damages, fines, and civil penalties for those who violate the law, as well as expand pro-employee and union protections. Below are some of those expanded protections:

  • Restore the 2015 Browning-Ferris decision that subjected employers to “joint employer” liability even if both entities did not directly control the terms and conditions of employment, and instead one “employer” only exercises “indirect” control which is unexercised and only “reserved” in a contract.
  • Narrow the definition of “supervisor” making it more difficult for an employer to classify its front-line supervisors and management as exempt from union-coverage.
  • Expand the definition of “employee,” adopting the California “ABC” test to exclude most workers from exempt independent contractor status.
  • Provide that directors and officers may be subject to personal liability for these civil penalties in cases where the director or officer directed or committed the violation, established a policy leading to the violation, or had actual or constructive knowledge of the violation and failed to prevent it.

Most believed the Federal PRO Act to be dead in the water—few ever anticipated it would garner enough support in Congress for the bill to have any real chance of passing. Truthfully, the likelihood of the PRO Act passing remains extremely low. However, if Biden’s speech is an indication of his priority list, Biden’s re-election could give the PRO Act a real chance at passing in Congress. If Biden successfully runs again, he will have six more years in office. Six years is plenty of time for Congressional dynamics to change enough to give the PRO Act a viable shot at passing, especially if the Biden Administration fixes in on its passage.

Right now, it appears as though the PRO Act is one of the Biden Administrations pipe dreams. However, Management and Owners should keep the PRO Act on their radar—it may be more likely to pass than we think.