The PRO Act helps forced unionization while the ERA helps workers

Key Differences: Employee Rights Act versus the Protecting the Right to Organize Act

  1. Secret Ballot Elections
    • Current policy: Employers can protect the secret ballot for their employees if they choose to have an election when a union presents them with unionization cards however union can also be recognized via an open petition process called card check that can lead to workers being coerced, intimidated, or deceived.
    • ERA: Guarantees workers the right to a secret ballot union election and bans union “card check” elections, rife with opportunity for union intimidation.
    • PRO: Weakens the secret ballot by allowing the NLRB to overturn secret ballot elections and recognize a union via card check if an employer cannot prove they are innocent of union accusations
  2. Employee Privacy Protections
    • Current policy: Employee contact information is given to a union during an organizing campaign when the union applies for an election.
    • ERA: Employees may select one piece of their personal contact information to be shared with a union. Personal information that is shared with a union could only be used for purposes related to an organizing campaign.
    • PRO: Requires workers personal information to be given to unions with no limitation on how that information can be used.
  3. Merit-Based Compensation Bonuses
    • Current policy: Merit-based bonuses not part of a collective bargaining agreement are prohibited.
    • ERA: Allows employers to offer merit bonuses even if those bonuses are not part of a collective bargaining agreement.
    • PRO: No provision, meaning unions can still prohibit merit-based raises and bonuses.
  4. Right to Work
    • Current policy: States have the right to adopt right-to-work laws granting workers the ability to opt-out of paying union fees without losing their job.
    • ERA: No provision, maintains current law giving states the right to choose to protect workers.
    • PRO: Eliminates state right-to-work laws, allowing unions to get private sector workers fired for not paying them.
  5. Political Protection for Union Members
    • Current policy: Workers must follow a complicated process to receive a rebate of their union dues going to political purposes.
    • ERA: Gives union members an opportunity to opt-in for union dues used for political purposes, rather than requiring them to opt-out.
    • PRO: Maintains current law.
  6. Legal Clarity for Independent Contracting
    • Current policy: The definition of employee and, by default, independent contractor is covered by several sections of federal code each having a different test. Further, some administrations have attempted to shift the traditional definitions to restrict independent contracting.
    • ERA: Provides clear, uniform definitions of the traditional independent contracting standard and legal clarity so independent contractors can continue to enjoy the flexibility they seek to run their own business. ERA also Increases the ability of gig economy workers to receive workplace benefits such as health and retirement plans.
    • PRO: Restricts the ability to work as an independent contractor and expands coverage of who is deemed an employee under the National Labor Relations Act (NLRA) – a move designed to increase opportunities for unionization.
  1. Joint Employer Standard
    • Current policy: Like the definition of independent contractor, some administrations have attempted to redefine joint employer standards away from the traditional interpretation of keeping employees of a small business franchise or subcontractor their employees as opposed to those of a distant large corporation.
    • ERA: Codifies the traditional joint employer standard meaning that small businesses owning franchise stores and subcontractors can still be the sole employer of their employees.
    • PRO: Codifies the Obama-era joint employer standard to include companies that may have only indirect control over the terms and conditions of employment rather than “direct and immediate” control. This could jeopardize small businesses across the country turning business owners into managers at large corporations.

PRO Act, H.R. 20, as introduced on February 28, 2023.
ERA, H.R. 7194, as introduced on March 24, 2022

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