S. 2984 — Employee Rights Act

This section revises Section 9(a) of the National Labor Relations Act (NLRA) to require exclusive bargaining representatives to be selected by secret ballot of employees in an election conducted by the National Labor Relations Board (NLRB), rather than designated or selected by the majority of employees in an appropriate unit. (Thus, this eliminates employer voluntary recognition of unions without an NLRB-supervised election.)

This section excludes employees without lawful status under the immigration laws (as defined in the Immigration and Nationality Act) from voting in specified labor elections by amending three statutes: (1) the National Labor Relations Act (NLRA), adding §9(f) to bar such employees from voting in National Labor Relations Board (NLRB) representation elections (including secret ballots) and from being counted as employees for NLRB election petitions; (2) the Labor Management Relations Act of 1947, adding to §209(b) to bar such employees from voting in required secret ballots during national emergency disputes; and (3) the Labor-Management Reporting and Disclosure Act of 1959, adding §401(j) to bar such employees from voting in labor organization officer elections.

This section amends Section 8(a) of the National Labor Relations Act (NLRA) to require employers, upon National Labor Relations Board (NLRB) direction of or approval for a representation election, to provide the petitioning labor organization a voter list of bargaining-unit employees' names and no more than one employee-chosen form of personal contact information (e.g., phone number, email address, or mailing address) in searchable electronic format (unless the employer lacks capacity), with NLRB regulations required within nine months of enactment and violation deemed an unfair labor practice. (Thus, this limits the scope of voter lists provided in NLRB representation elections, which determine unions' exclusive bargaining rights under NLRA Section 9.) It further amends Section 8(b) of the NLRA to make it a union unfair labor practice to fail to protect employee personal information received for an organizing drive, to use it for purposes other than a representation proceeding, or to retain or use it after such a proceeding concludes. Separately, this section adds a new Section 106 to Title I of the Labor-Management Reporting and Disclosure Act of 1959 to prohibit labor organizations from using employees' dues, fees, or contributions for nonrepresentational activities (i.e., other than collective bargaining or contract administration) without the employee's written authorization provided after at least 35 days' notice, with initial authorizations expiring after one year and no automatic renewal.

This section establishes new criteria under the Fair Labor Standards Act of 1938 (FLSA) for distinguishing employees from independent contractors—namely, an individual is an independent contractor if the putative employer does not exercise significant control over work details (beyond the final result) and the individual bears entrepreneurial risks and opportunities—and applies this standard to the National Labor Relations Act (NLRA). (As background, the NLRA protects most private-sector employees' rights to organize and bargain collectively, while the FLSA sets minimum wage, overtime, and recordkeeping standards; both previously excluded independent contractors but lacked this uniform test.) It further limits "joint employer" status under both the NLRA and FLSA to situations where each employer directly, actually, and immediately exercises significant control (not limited or routine) over essential employment terms of the other employer's workers, such as hiring, firing, pay, benefits, day-to-day supervision, work assignments, or discipline. Finally, it specifies that a franchisor providing or requiring franchisees to use training materials or policies on sexual harassment, human trafficking, workplace violence, discrimination, apprenticeships, scholarships, child care, or paid leave does not, alone or combined with other factors, create an employer-employee relationship between the franchisor and franchisee employees under the NLRA or FLSA.

This section modifies the definition of employer under the National Labor Relations Act (NLRA)—which governs private-sector collective bargaining and unfair labor practices—by excluding any Indian Tribe or any enterprise or institution owned and operated by an Indian Tribe and located on its Indian lands (in addition to previously excluded entities such as the federal government, states and political subdivisions, and labor organizations). It also adds definitions of (15) Indian Tribe (i.e., any federally recognized Indian tribe, band, nation, pueblo, or other organized group or community eligible for federal programs and services provided to Indians); (16) Indian (i.e., any member of an Indian Tribe); and (17) Indian lands (i.e., reservation lands, trust lands, restricted lands, and specified lands in Oklahoma). (Thus, these tribal entities are exempt from NLRA coverage as employers.)

This section amends the National Labor Relations Act (NLRA) to authorize "independent negotiating" (i.e., direct employer-employee negotiations ignoring any collective bargaining agreement) by non-union members in covered states (i.e., right-to-work states or territories prohibiting union-security agreements as a condition of employment). (1) It expands employer unfair labor practices under NLRA Section 8(a)(3) to include discrimination against such employees and adds union unfair labor practices under Section 8(b) to prohibit unions from representing them, interfering with their negotiations, or restraining/coercing them from negotiating independently. (2) It revises NLRA Section 9(a) to exclude such employees from exclusive union representation (previously, unions represent all unit employees regardless of membership). (Thus, in covered states, non-members may negotiate individual terms bypassing the bargaining unit.)

This section establishes as an unfair labor practice for a labor organization to include in a collective bargaining agreement any provision that mandates or promotes diversity, equity, or inclusion initiatives—including preferences, mandates, policies, programs, activities, or guidance related to personal characteristics unrelated to job qualifications or performance—unless required by federal, state, or local law. (Section 8(b) of the National Labor Relations Act prohibits specified unfair labor practices by unions, such as coercing employees or restraining employees' rights under the act.)

This section revises 18 U.S.C. 1951 (the Hobbs Act), which prohibits robbery, extortion, or threats of physical violence that obstruct, delay, or affect commerce (broadly defined to include interstate and intrastate commerce over which the United States has jurisdiction). It adds definitions of "labor dispute" (as defined in the National Labor Relations Act, 29 U.S.C. 152(9)), "extortion," and "robbery"; retains the prohibition with penalties of a fine up to $100,000, imprisonment up to 20 years, or both; and exempts from federal prohibition any conduct that is incidental to peaceful picketing during a labor dispute, consists solely of minor bodily injury or property damage (or threats thereof), and is not part of a pattern or coordinated violence—with such exempted conduct subject to prosecution only by state and local authorities. The section specifies that it does not repeal or amend section 6 of the Clayton Act (15 U.S.C. 17, which exempts certain labor organizations from the antitrust laws), section 20 of the Clayton Act (29 U.S.C. 52), the Norris-LaGuardia Act (29 U.S.C. 101 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), or the Railway Labor Act (45 U.S.C. 151 et seq.); and it does not preclude federal jurisdiction over non-exempt violations even if they also violate state or local law or occur during a labor dispute.

This section amends section 8(a)(3) of the National Labor Relations Act (NLRA)—which prohibits employer discrimination in hire, tenure, or employment terms or conditions to encourage or discourage union membership—by adding a proviso clarifying that nothing in the provision precludes employers from taking action to protect employees from discriminatory, harassing, or demeaning language or conduct, including during organizing campaigns or strikes. (Thus, such employer actions do not constitute unfair labor practices.)