Vice President, Labor Policy, U.S. Chamber of Commerce
April 21, 2023
A bill known as the Employee Rights Act (ERA) was introduced in Congress on April 19, which, if enacted, would make key changes to labor law and bring much-needed balance between union rights, employee rights, and employer rights in labor organizing. The ERA contains numerous elements that would benefit employers and employees alike while also limiting radical changes in labor policy based on the makeup of the National Labor Relations Board (NLRB).
The ERA would guarantee employees the right to a secret ballot representation election overseen by the NLRB rather than through the collection of signature cards, which would allow them to register their support for union representation in the privacy of a voting booth and not in the presence of labor organizers or their employer. Guaranteeing secret ballot elections would also put an end to the current NLRB General Counsel’s effort to adopt the long-discarded practice known as the Joy Silk doctrine, which would force employers to bargain with a union once they receive union cards signed by a majority of their employees.
The new proposal also would guarantee unions the ability to receive voter registration lists, while simultaneously protecting employees’ privacy interests by limiting the amount of their personal contact information that must be disclosed. The bill would further protect employees’ privacy interests by requiring that their personal information not be disclosed for any purpose other than union organizing or after the conclusion of a representation proceeding.
In addition, the ERA would guarantee union members the right not to subsidize activities that are unrelated to representation. Over the last twenty years, financial disclosure forms filed by unions clearly demonstrate that unions spend tens, if not hundreds, of millions of dollars extracted from their members to support political causes and candidates. These expenditures are made regardless of whether members actually support those causes or candidates and despite union officers’ fiduciary obligation to spend funds in the interest of their members.
The ERA would also establish a clear standard for determining whether an individual may be classified as an employee versus an independent contractor. The bill would update the National Labor Relations Act and the Fair Labor Standards Act to enshrine the common-law definition of an “employee” and put it in line with several state statutes and recent Supreme Court rulings. This would bring much-needed clarity to an issue that has been a source of substantial confusion in recent years.
Similarly, the ERA would bring clarity to the issue of joint employment by establishing a definitive standard for evaluating a potential joint employment relationship. The bill would ensure that an employer may only be considered a joint employer of another employer’s employees when the former actually directly exercises control over the essential terms and conditions of employment of the latter’s employees. Such a definition would clarify for all parties who is—or is not—a joint employer.
Moreover, the ERA would establish that certain factors may not be construed to establish an employer-employee relationship between franchisors and their franchisees’ employees. The bill would make clear that providing employee handbook templates, trainings, or other resources will not create a joint employment liability for franchisors seeking to assist their franchises.
All told, the ERA is a commonsense, pro-worker bill that stands in stark contrast to the radical Protecting the Right to Organize (PRO) Act that unions and their political allies hope will reverse their decades-long decline in membership by legislative fiat.