The PRO Act: An Intended Revolution In Labor Law

Walter Olson

The right direction for labor law reform is to move toward more respect for freedom of contract and a federal government retrenchment from a role in regulating union‐​management relations that is nowhere contemplated for it in the Constitution. Instead, the PRO Act, passed this week by the House on a near‐​party‐​line vote, would put the private workplace on a forced march in precisely the wrong direction. (Details on the bill’s provisions here, here, here, and here.)

• It would trash voluntary contractual relations, including the legitimate role of independent contracting, where it would follow the disastrous path of California’s AB5 in putting a wide array of freelance jobs at risk. It would also invalidate many pre‐​dispute agreements to arbitrate, and bar many employees from being given the legal status of supervisors even if they welcome that role.
• It would thrust the federal government even further into private workplace regulation through “joint employer” rules that blur and misattribute responsibility among multiple employers, a new federal power to impose a first contract when union negotiations do not result in one, and highly punitive new penalties and legal exposures, including personal liability for officers and directors.
• It even has dubious First Amendment implications, as with provisions seeking to regulate (and deter) management’s resort to legal counsel in unionization drives, and a requirement that in‐​house employee forums established by a company be required to carry anti‐​management messaging.

The PRO Act is regressive, looking back to a vision of labor relations that was mistaken even in its Thirties heyday. And it is a menace to liberty.