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Congressman Wants to Make Unionization a Civil Right

The Employee Empowerment Act, introduced in Congress on July 30, would make the right to unionize a federally protected civil right, allowing aggrieved employees to file private lawsuits against their employers, similar to protections currently available under federal law against discrimination on the basis of protected characteristics such national origin, sex, race, religion and color.

The measure appears to be intended to offer individual employees such significant damage and injunctive remedies in court (with attorney fees for their lawyers) that it might drive the nation’s long-established labor relations law into desuetude.   Under the National Labor Relations Act, an employee who believes he or she was discriminated against on the basis of union membership or activity (or even certain “concerted” activity in the absence of a union) may file an unfair labor practice charge against his employer.

When an unfair labor practice charge is filed, the Regional Office of the Labor Board where it is filed will decide whether the charge should be pursued.  If a complaint is issued and if the employee prevails, the Labor Board may order “make whole” relief, such as reinstatement of the employee and back pay and benefits.  According to Representative Keith Ellison (D. Minn.), who introduced the new bill, these remedies are inadequate.

The proposed bill would not change the right of employees to file unfair labor practices with the NLRB.  However, it would add a new right by permitting employees to pursue their claims in individual private lawsuits in federal district court.  Thus, in addition to the “make whole” remedies available for unfair labor practices, employees who prevail in these private lawsuits would be eligible for damages for emotional distress, punitive damages and attorneys’ fees, as well as compensation for lost earnings and benefits.   It does not appear that filing a charge with the NLRB is a condition precedent to filing a civil action.  That could mean that, enticed by visions of a big payday, and egged on by a plaintiffs’ bar seeking a new source of fees, employees may abandon resort to the NLRB for the new, private remedy.

Although one never knows, it appears this bill ultimately may be chalked up as merely one more in a growing list of attempts by both political parties to express their displeasure with the state of labor organizing today.

Jackson Lewis P.C. © 2020


About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

Howard Bloom, Jackson Lewis, labor union attorney, unfair practice investigations lawyer, employment legal counsel, bargaining law

Howard M. Bloom is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He has practiced labor and employment law representing exclusively employers for more than 36 years.

Mr. Bloom counsels clients in a variety of industries on labor law issues. He trains and advises executives, managers and supervisors on union awareness and positive employee relations, and assists employers in connection with union card-signing efforts, traditional union representation and corporate campaigns, and union decertification...

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...