In addition to sorely needed stimulus packages, both state and federal legislatures are presently considering new laws that either address issues created in the wake of the pandemic or conditions that have existed prior to the pandemic that have been exacerbated by it. With both houses of Congress aligned with a more progressive platform, urgent legislative reform is now more possible than ever before. The bills that I discuss below may not be perfect solutions to some of the ills this country has suffered, but at the very least they reflect our country’s recognition that legislative reform is necessary — just as we realized once before, in the wake of the Great Depression. Undoubtedly, the seeds of reform have been sown and the ground is very fertile.
The first piece of legislation to be aware of is the reintroduction of the PRO Act (“Protecting Right to Organize Act”) This sweeping federal law would revise the National Labor Relations Act to make it more favorable to labor’s interests and its ability to organize. It was first introduced and passed in the House in early 2020, but was tabled in the Senate. See my December 2019 column here for background.
On February 4, 2021, House and Senate Democrats reintroduced a slightly revised version of the PRO Act. The act would completely revise the NLRA in several ways. First, it would eliminate “right-to-work” legislation, which outlaws union security agreements. Second, it would bar employers from permanently replacing workers who are striking over economic conditions, thus expanding the scope of economic tools a union could employ during collective bargaining. The PRO Act would legalize secondary strikes and boycotts, which are currently banned under the NLRA. This would permit unions to engage in protected activity with respect to employers who have business dealings with employers with whom the union has a primary labor dispute. The PRO Act would encourage quick elections and card check agreements and would permit an arbitrator to impose basic contract terms on an employer who engages in unfair bargaining tactics during negotiations. Finally, the PRO Act would permit independent contractors and supervisors to organize into unions.
While conditions are far more favorable for the passage of this law then they were in 2020, it does not seem likely there will be enough support in the Senate to pass it now, though President Biden appears to be in favor of it. It could be possible that a modified version of the PRO Act could be successfully enacted. It behooves union members and labor advocates to support this legislation and let their representatives know of that support.
The next federal law that members should keep a keen eye on is the Emergency Pension Plan Relief Act, which was introduced to Congress on January 21, 2021. This legislation is intended to address, and correct financial difficulties presently faced by ailing multi-employer pension plans. It would do this in several ways. First by greatly expanding Pension Benefit Guaranty Corporation’s ability to “partition” multi-employer pension plans on the brink of insolvency. The partitioning process would permit the PBGC to divide a financially distressed plan into two plans and permit the PBGC to take financial responsibility over the portion of the plan that was actively paying out benefits. To that end, the Emergency Pension Plan Relief Act would repeal that portion of MPRA that permits a multi-employer pension plan to apply for a suspension or reduction of pension benefits it provides to vested employees. At present, however, it does not appear that the Emergency Pension Plan Relief Act would impact plans that have already had their application for pension reduction approved. Finally, the Emergency Pension Plan Relief Act would greatly increase the level of plan benefits that would be guaranteed by the PBGC.
The Emergency Pension Plan Relief Act was the first piece of legislation that was introduced by House Ways and Means Committee Chair Richard Neil. The alacrity with which this legislation was introduced to Congress demonstrates that it is taking the pension crisis existing in this country seriously. The Emergency Pension Plan Relief Act is a law that we will all be following very closely. Hopefully there will be more news regarding the status of the Emergency Pension Plan Relief Act shortly.
On the state legislative front, the New York State Legislature has introduced the New York Biometric Privacy Act. It is modeled on a similar piece of legislation enacted in Illinois in 2008. If passed, the New York Biometric Privacy Act would place significant restrictions on an employer’s ability to use biometric data employers may have accumulated from their employees as a result of COVID-19 testing. Such data includes an individual’s measurable biometric characteristics such as fingerprints, voiceprints, retinal scans, and facial photography. If this bill becomes law employers will have to send notification to anyone whose biometric data it might have collected. Further, it will require employers subject to its terms to confidentially retain and preserve collected data.
These legislative efforts to address and resolve some of the greatest problems confronted by employees today is a welcome and encouraging sign. We eagerly await the results of these efforts.
Harvey Mars is counsel to Local 802. Legal questions from members are welcome. E-mail them to firstname.lastname@example.org. Harvey Mars’s previous articles in this series are archived at www.harveymarsattorney.com. (Click on “Publications & Articles” from the top menu.) Nothing here or in previous articles should be construed as formal legal advice given in the context of an attorney-client relationship.