While the Protect the Right to Organize (PRO) Act was passed by the House of Representatives, it has not been made part of the Biden administration’s infrastructure efforts thus far and does not appear have sufficient support to overcome a certain filibuster in the Senate. Therefore, passage of the Act in its present form is unlikely, especially because the reconciliation process being used for the so-called Biden Budget Blueprint would not seem to apply to the PRO Act.
Thus, at the same time a strong anti-PRO Act lobby appears to be gaining momentum, the administration is reportedly contemplating adopting parts of the PRO Act by executive order, although the scope of such an order would be constitutionally limited.
Whether or not the PRO Act becomes law, David Weil may be inclined to either revert to the Obama era “economic realities” joint employment standard or could propose an even stricter ABC joint employment test. Dr. Weil’s book, Fissured Employment, provided a thoughtful foundation for the economic realities standard, but whether he would support a stricter ABC test is anyone’s guess.
The NLRB is constrained by existing legislation and cannot independently adopt all the changes featured in the PRO Act, nor could an executive order command legislative changes. For example, only the PRO Act would by law embed the indirect control standard into the NLRA. That said, the Board could revise its definition of employee, as it did during the Obama era, in the course of its quasi-judicial activities. The NLRB traditionally has three members from the President’s party and two from the opposition. With staggered terms, the Board’s composition can be slow to change. However, with Biden’s recent nominations to the Board, control of the NLRB could soon change to Democratic.
Whether and how much of the PRO Act can or will be implemented legislatively, by executive order, or by agency regulation is unpredictable. The answers will determine the landscape to which the franchise industry must adapt, and certainly there will be judicial challenges to the outcome. But in the interim, the industry must prepare to survive the maelstrom.