The National Labor Relations Act (NLRA) of 1935 was the first piece of American legislation that legally protected an employee’s right to engage in concerted activity, i.e. the right to organize. Twelve years later, Congress passed the Taft-Hartley Act, providing more guidelines for resolving labor disputes and limiting union power.
Since then not much has changed. However, on February 6, 2020, the House passed the Protecting the Right to Organize (PRO) Act. Currently, the National Labor Relations Board (NLRB) can order employers to reinstate employees with back wages but does not have the power to fine employers for violations. The PRO Act would grant the NLRB the power to fine employers up to $50,000 per violation in addition to back wages. The PRO Act would also narrow the definition of an independent contractor so that more workers are classified as employees. Employees, as opposed to independent contractors, have greater protections under the law that include the right to unionize and entitlement to, under the Fair Labor Standards Act, overtime pay.
While it is unlikely the PRO Act will pass through the Senate, this is still a good moment for employers to think about how their practices in the workplace can affect an employee’s desire to organize. This is evidence that democratic legislators are becoming more interested in passing legislation that benefits unions. It is reasonable to project that we will see this kind of legislation at the state level also.
Why do employees form unions? Generally, it is because they are unhappy with treatment from management. So how can management get ahead of the issue? Operate lawfully, implement HR best practices, and communicate with employees on a regular basis.