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Congress Considers Bill That Would Further Protect Workers’ Right to Organize

Federal law protects workers’ right to organize for the purpose of negotiating with their employers, such as by joining or forming a labor union. Some employers look for creative ways to discourage their employees from organizing. The National Labor Relations Act (NLRA) prohibits employers from interfering with activity related to labor organizing, but it often provides leeway allowing employers to discourage workers without quite reaching the level of unlawful coercion. New Jersey employment law is generally favorable to unions, but employers in this state can still take advantage of gaps in the NLRA’s protections. A bill currently pending in the U.S. Congress, the Protecting the Right to Organize (PRO) Act of 2021, would amend the NLRA to include far greater protections for workers. The House of Representatives passed it in March 2021, and it awaits action by the Senate.

Section 7 of the NLRA, codified at 29 U.S.C. § 157, states that employees have the right to organize themselves in order to bargain collectively with their employers. They may do this by joining an existing labor union, or they can form a union of their own. The law also protects workers’ right to engage in “concerted activities” related to labor organizing. Courts have taken a broad view of what counts as protected concerted activity.

The NLRA’s restrictions on employer actions are found in § 8(a) of the law, or 29 U.S.C. § 158(a). Employers may not “interfere with, restrain, or coerce employees” who are exercising their rights under § 7. They also may not discriminate or retaliate against employees because of their protected activities.

One of the biggest problems with enforcing the NLRA is the limited relief that it allows for workers. The PRO Act includes provisions that would change this. Currently, the National Labor Relations Board (NLRB) can award remedies like reinstatement to aggrieved workers, sometimes along with back pay. It can issue injunctions to bar employers from practices found to violate the NLRA.

The PRO Act would allow the NLRB to impose monetary penalties on employers who interfere with workers’ protected activities, or who retaliate against workers engaged in organizing. Damages could include back pay, front pay, consequential damages, and liquidated damages in an amount equal to twice the total amount of awarded damages.

The new law, if passed, would apply the “ABC test” used in New Jersey and other jurisdictions to determine whether someone is an employee who is protected by the NLRA, or an independent contractor who is not. The ABC test presumes that someone is an employee unless an employer can show otherwise. It examines the extent to which an employer can control when, where, and how a person does their job.

The Labor Management Reporting and Disclosure Act of 1959 requires employers to report certain activities in which they have engaged related to labor organizing. This includes activities intended “to persuade employees to exercise or not to exercise” their rights under § 7 of the NLRA. 29 U.S.C. § 433(b)(1). Employers sometimes hold meetings with their employees about labor organizing, with the goal of discouraging them from doing so. The PRO Act would make it an unfair labor practice for employers to make attendance at this kind of meeting mandatory.

The experienced and knowledgeable employment attorneys at the Resnick Law Group represent workers in New Jersey and New York in claims under federal and state law. Please contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.

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