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September 13, 2021

Budget Reconciliation Likely To Include Broad New Labor, Employment Rules

The $3.5 trillion budget reconciliation currently being written by U.S. House and Senate lawmakers is likely to include broad new labor and employment rules. While it appears unlikely that Democrats will try to add the entire PRO Act to the reconciliation legislation, as labor law experts at Proskauer explained, on September 8, the House Education and Labor Committee released a legislative draft that would, for the first time ever, allow the National Labor Relations Board to issue civil penalties in unfair labor practice cases.

The bill creates new liability for employers found to have committed unfair labor practices by calling for:

  • Civil penalties up to $50,000 per violation;
  • Civil penalties up to $100,000 per violation within the previous five years that resulted in discharge of or “serious economic harm to an employee”; and
  • Personal liability for directors and officers for unfair labor practices based on the particular facts and circumstances presented.

The lawyers said the bill also “would drastically eliminate a number of economic weapons or tools currently available to employers during labor disputes and/or organizing campaigns” by making it an unfair labor practice for employers to promise, threaten, or take the following actions:

  • Permanently replace strikers;
  • Discriminate against an employee who is working or has unconditionally offered to return to work because the employee participated in or supported a strike;
  • Lock out employees prior to a strike;
  • Misrepresent to a worker that they are excluded from the definition of “employee” under the National Labor Relations Act;
  • Require employees to attend so-called “captive audience” speeches or meetings during a union-organizing campaign; and
  • Enter into, attempt to enforce, coerce, or retaliate against class/collective-action waiver agreements.

Violations of these provisions would result in civil monetary penalties.