The National Labor Relations Act is due for an upgrade and there’s legislation to do that, says the Economic Policy Institute. Among the changes would be an end to right-to-work laws, which Missouri voters resoundingly rejected by ballot in 2018. Photo credit: AFL-CIO via Flickr

America’s current labor law leaves much to be desired from the worker’s perspective, according to new research from the Economic Policy Institute. But there’s a way to fix it – if Congress decides to act.

As just about anyone who has ever tried to organize their workplace can attest, the deck is stacked against them. It’s the rare employer who voluntarily recognizes its employees’ efforts to join together, meaning that workers must fight for their rights in an arena that offers few penalties for anti-union employers and considerable risk for the employees. This imbalance, says EPI, is due in large part to weaknesses in the National Labor Relations Act.

“It is a cruel irony that the two laws most important to workers being able to join together to protect their health and safety on the job—the National Labor Relations Act and the Occupational Safety and Health Act—are the two labor and employment laws with the weakest anti-retaliation protections,” write EPI’s Lynn Rhinehart and Celine McNicholas.

When President Franklin D. Roosevelt signed the NLRA into law in 1935, he stated that, “A better relationship between labor and management is the high purpose of this Act. By assuring the employees the right of collective bargaining, it fosters the development of the employment contract on a sound and equitable basis.” At a time of high economic uncertainty and labor strife, this was an attempt to establish labor peace by leveling the playing field. And it worked. With passage of the NLRA, also called the Wagner Act after the New York senator who spearheaded its passage, union membership increased as did productivity, wages and improved working conditions.

In the decades since, however, the NLRA has been repeatedly weakened, and with it union membership. Despite nearly half of all working people saying they would join a union if they could, less than 12% actually belong to one. This disconnect between what workers want and what they actually have is because of the unequal playing field created by anti-worker laws and policies that allow employers to get away with undermining their employees’ right to organize.  

According to EPI’s analysis, fundamental flaws in the NLRA make it significantly weaker than other labor laws with regard to anti-retaliation protections. As a result, it fails to provide an effective deterrent against employer retaliation—an all-too-common occurrence in organizing campaigns.

As the authors note, employers face no monetary penalties for illegally retaliating against workers who exercise their rights, nor do workers receive compensatory damages when they’re illegally fired. And those who are illegally fired don’t get their jobs back while their cases are pending, meaning they can be out of work and losing pay for months or even years. If they do get reinstated, deductions are taken out of the back pay they receive. For workers who want to pursue their anti-retaliation case, their only recourse is through the National Labor Relations Board, which is often slow or fails to act at all.

By contrast, anti-retaliation whistleblower provisions in other laws, such as the Occupational Safety and Health Act, provide for monetary damages to workers for the harm they experience, as well as attorneys’ fees to compensate the worker’s legal representation. The NLRA does not. And many other employment laws – though not the OSH Act – allow workers to pursue their case before an administrative agency or federal court if the relevant agency fails to act.

With regard to the OSH Act, the coronavirus has laid bare its deficits. As a separate EPI report noted, workers have the right to file a complaint with the Occupational Safety and Health Administration, the agency born out of the Act, if they feel their working conditions are unsafe. And yet, despite receiving more than 9,000 such complaints by September 2020, OSHA closed more than 80% of them and opened just 199 investigations. And while OSHA does have whistleblower protections, they involve lengthy court proceedings and don’t give workers a right to sue their employers on their own.

“Many workers still do not have a meaningful right to refuse to accept dangerous assignments or protect themselves when they accept those assignments,” said report author Ann Rosenthal. “These structural imbalances are amplified by the fact that many of the most dangerous jobs in this economy are disproportionately held by some of the most vulnerable and lowest-paid workers.”

The solution, says EPI, is the PRO Act. It’s been called the most significant piece of labor legislation in decades with more than 30 proposed changes to existing law. Among those proposed reforms are increased protections against employer retaliation. Workers would have access to full back pay without deductions for time out of work, front pay if reinstatement is not feasible, consequential damages to compensate for harm caused by the violation, and double the amount of back pay as liquidated damages.

The PRO Act also directs the NLRB to seek preliminary reinstatement of workers when they file retaliation charges and the board finds reasonable cause to believe that a violation occurred. The board would also have to prioritize such cases. If an agency does fail to act in a timely manner, the PRO Act further establishes the right for workers to seek justice in federal court. In such circumstances, the courts would be authorized to award back pay, front pay, liquidated damages, consequential damages, punitive damages and attorneys’ fees to workers who prevail, similar to provisions in most other anti-retaliation and modern whistleblower statutes.

The landmark labor legislation would also streamline the election process – bringing back changes enacted by the Obama administration that were rolled back by the Trump Labor Department – ban captive audience meetings, call for mediation and arbitration if an employer doesn’t commit to a first contract, and do away with right-to-work laws, among numerous other improvements.

The PRO Act passed the House of Representatives in March and has the support of President Joe Biden, as well as a majority of likely voters according to a new poll, but has stalled in the Senate.

“The coronavirus may have pulled back the curtain on the precariousness of far too many working families, but these problems pre-date 2020,” said International President Lonnie R. Stephenson. “Passing the PRO Act would reinvigorate the right to bargain collectively, which has long been under attack, and restore balance and prosperity to not just the economy, but the lives of working people everywhere.

“We need you to call your senators and tell them the PRO Act is the right solution for working families.”