[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2042 Introduced in Senate (IS)]
114th CONGRESS
1st Session
S. 2042
To amend the National Labor Relations Act to strengthen protections for
employees wishing to advocate for improved wages, hours, or other terms
or conditions of employment and to provide for stronger remedies for
interference with these rights, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 16, 2015
Mrs. Murray (for herself, Ms. Mikulski, Mr. Franken, Mr. Whitehouse,
Ms. Warren, Mr. Blumenthal, and Mr. Reed) introduced the following
bill; which was read twice and referred to the Committee on Health,
Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the National Labor Relations Act to strengthen protections for
employees wishing to advocate for improved wages, hours, or other terms
or conditions of employment and to provide for stronger remedies for
interference with these rights, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workplace Action for a Growing
Economy Act'' or the ``WAGE Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The National Labor Relations Act (29 U.S.C. 151 et
seq.) was enacted to encourage the practice of collective
bargaining and to protect the exercise by workers of full
freedom of association in the workplace. Since its enactment in
1935, tens of millions of workers have bargained with their
employers over wages, benefits, and other terms and conditions
of employment and have raised the standard of living for all
workers.
(2) Through acting collectively and bargaining with their
employers, workers who are unionized earn 21.3 percent more
than workers who are not covered by a collective bargaining
agreement. They are 28.4 percent more likely to be covered by
employer-provided health insurance and 30.9 percent more likely
to have employer-provided pensions. The wage differential is
even more pronounced for women and people of color. Unionized
African-American workers earn 24.6 percent more than African-
American workers who are not unionized, and unionized Latino
workers earn 29.3 percent more than their peers who are not
unionized. Unionized women earn 24 percent more than women who
are not unionized, and the wage gap between men and women is
much smaller at unionized workplaces. The wage gains achieved
through collective bargaining benefit workers and their
communities.
(3) Unions and collective bargaining ensure that
productivity gains are shared by working people. The decline in
the percentage of workers covered by collective bargaining has
contributed significantly to skyrocketing income inequality and
flat wages.
(4) As enacted in 1935, the National Labor Relations Act
(29 U.S.C. 151 et seq.) protects the right of all workers to
join together with their co-workers to advocate for
improvements in their pay, benefits, and working conditions,
regardless of whether they seek representation by a union. The
law protects the right of workers to discuss issues like pay
and benefits without retaliation or interference by employers.
However, the awareness of workers regarding their rights under
the law is lacking, and many employers maintain policies that
restrict the ability of workers to discuss workplace issues
with each other, directly contravening these rights. Research
shows that more than one-half of workers report that their
employers have policies that prohibit or discourage workers
from discussing pay with their co-workers. These policies and
practices impede workers from exercising their rights under the
law and impair their freedom of association at work.
(5) Retaliation by employers against workers who exercise
their rights under the National Labor Relations Act (29 U.S.C.
151 et seq.) persists at troubling levels. Employers routinely
fire workers for trying to form a union at their workplace. In
one out of 3 organizing campaigns, one or more workers are
discharged for supporting joining a union. In fiscal year 2014,
the National Labor Relations Board obtained reinstatement
orders for 3,240 workers and obtained backpay awards totaling
$43,800,000 for workers who faced illegal retaliation for
exercising their rights. Discrimination for organizing hurts
all workers, but minorities in particular, as minorities are
more likely than Whites to seek to organize and receive a
larger wage premium from collective bargaining.
(6) The current remedies are inadequate to deter employers
from violating the National Labor Relations Act (29 U.S.C. 151
et seq.). The remedies and penalties for violations of the
National Labor Relations Act (29 U.S.C. 151 et seq.) are far
weaker than for other labor and employment laws, including the
Civil Rights Act of 1964 (42 U.S.C. 2000a et seq.). Unlike
other major labor and employment laws, there are no civil
penalties for violations of the law. Workers cannot go to court
to pursue relief on their own; they must rely on the National
Labor Relations Board to prosecute their case.
(7) In order to make the right to collective bargaining and
freedom of association in the workplace a reality for workers,
the National Labor Relations Act (29 U.S.C. 151 et seq.) must
be strengthened.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to strengthen protections for employees engaged in
collective action to improve their wages, hours, and terms and
conditions of employment;
(2) to provide for stronger remedies for employees who face
retaliation, discrimination, or other interference with the
legal right of the employees to engage in collective action;
(3) to provide for penalties against employers who violate
the rights of employees to engage in collective action, in
order to act as a meaningful deterrent against violating the
law; and
(4) to streamline the enforcement procedures of the
National Labor Relations Board to provide for more timely and
effective enforcement of the law.
SEC. 4. STRENGTHENING REMEDIES AND ENFORCEMENT FOR EMPLOYEES EXERCISING
THEIR RIGHTS AT WORK.
(a) Backpay.--Section 10(c) of the National Labor Relations Act (29
U.S.C. 160(c)) is amended by striking ``And provided further,'' and
inserting ``Provided further, That if the Board finds that an employer
has discriminated against an employee in violation of paragraph (3) or
(4) of section 8(a) or has committed a violation of section 8(a) that
results in the discharge of an employee or other serious economic loss
to an employee, the Board shall award the employee back pay and an
additional amount as liquidated damages equal to 2 times the amount of
such back pay, without any reduction (including any reduction based on
the employee's interim earnings or failure to earn interim earnings):
Provided further,''.
(b) Civil Penalties.--Section 12 of the National Labor Relations
Act (29 U.S.C. 162) is amended--
(1) by striking ``Sec. 12. Any person'' and inserting the
following:
``SEC. 12. CIVIL PENALTIES.
``(a) Violations for Interference With Board.--Any person''; and
(2) by adding at the end the following:
``(b) Violations of Posting Requirements.--If the Board, or any
agent or agency designated by the Board for such purposes, determines
that an employer has willfully violated section 8(h), the Board shall--
``(1) state the findings of fact supporting such
determination;
``(2) issue and cause to be served on such employer an
order requiring that such employer post the notice described in
such section and provide the information to new employees
described in such section; and
``(3) impose a civil penalty in an amount determined
appropriate by the Board, except that in no case shall the
amount of the fine exceed $500 for each such violation.
``(c) Violations Causing Serious Economic Loss to Employees.--
``(1) In general.--Any employer who commits an unfair labor
practice within the meaning of paragraph (3) or (4) of section
8(a) or a violation of section 8(a) that results in the
discharge of an employee or other serious economic loss to an
employee shall, in addition to any remedy ordered by the Board,
be subject to a civil penalty. Such penalty shall be in an
amount not to exceed $50,000 for each violation, except that
the Board shall double the amount of such penalty, to an amount
not to exceed $100,000, in any case where the employer has
within the preceding 5 years committed another such violation.
``(2) Considerations.--In determining the amount of any
civil penalty under this subsection, the Board shall consider--
``(A) the gravity of the unfair labor practice;
``(B) the impact of the unfair labor practice on
the charging party, on other persons seeking to
exercise rights guaranteed by this Act, and on the
public interest; and
``(C) the size of the employer.
``(3) Personal liability.--If the Board determines, based
on the particular facts and circumstances presented, that
personal liability is warranted, a civil penalty for a
violation described in this subsection may also be assessed
against any officer or director of the employer who committed
the violation or had the authority to prevent the violation.
``(d) Joint and Several Liability.--An employer shall be jointly
and severally liable under this Act for any violations of this Act
involving one or more employees supplied by another employer to perform
labor within the employer's usual course of business, except for
purposes of subsection (e).''.
(c) Injunctions Against Unfair Labor Practices Involving Discharge
or Other Serious Economic Loss.--
(1) In general.--Section 10(l) of the National Labor
Relations Act (29 U.S.C. 160(l)) is amended--
(A) by inserting after ``charged that'' the
following: ``an employer has engaged in an unfair labor
practice within the meaning of section 8(a) that
significantly interferes with, restrains, or coerces
employees in the exercise of the rights guaranteed
under section 7 and involves discharge or other serious
economic harm to an employee or''; and
(B) by striking ``as it deems just and proper,
notwithstanding any other provision of law:'' and
inserting the following: ``to protect the rights
guaranteed by section 7, notwithstanding any other
provision of law. The district court shall grant the
relief requested unless the court concludes that there
is no reasonable likelihood that the Board will succeed
on the merits of the Board's claim:''.
(2) Conforming amendment.--Section 10(m) of the National
Labor Relations Act (29 U.S.C. 160(m)) is amended by inserting
``under circumstances not subject to subsection (l)'' after
``section 8''.
(d) Private Enforcement.--Section 12 of the National Labor
Relations Act (29 U.S.C. 162), as amended by subsection (b), is further
amended by adding at the end the following:
``(e) Right to Civil Action.--
``(1) In general.--Any person who is injured by reason of
any violation of paragraph (1) or (3) of section 8(a) may, in
addition to or in lieu of filing a charge alleging such unfair
labor practice with the Board in accordance with this Act,
bring a civil action in the appropriate district court of the
United States against the employer within 180 days of the
violation.
``(2) Available relief.--Relief granted in an action under
paragraph (1) may include any relief authorized by section
706(g) of the Civil Rights Act of 1965 (42 U.S.C. 2000e-5(g))
or by section 1977A(b) of the Revised Statutes (42 U.S.C.
1981a(b)).
``(3) Attorney's fee.--In any action or proceeding under
this subsection, the court may allow the prevailing party a
reasonable attorney's fee (including expert fees) as part of
the costs.''.
(e) Ensuring Fair Remedies for All Workers.--Section 10(c) of the
National Labor Relations Act (29 U.S.C. 160(c)) is amended by striking
``suffered by him:'' and inserting ``suffered by such employee:
Provided further, That back pay shall not be denied on the basis that
the employee is, or was during the time of relevant employment or
during the back pay period, an unauthorized alien as defined in section
274A(h)(3) of the Immigration and Nationality Act (8 U.S.C.
1324a(h)(3)) or any other provision of Federal law relating to the
unlawful employment of aliens:''.
(f) Remedying Election Interference.--Section 9(c) of the National
Labor Relations Act (29 U.S.C. 159(c)) is amended--
(1) by redesignating paragraphs (4) and (5) as paragraphs
(6) and (7), respectively; and
(2) by inserting after paragraph (3) the following:
``(4) Bargaining Order Based on Majority of Votes.--If the Board
finds that, in an election under paragraph (1), a majority of the valid
votes cast in a unit appropriate for purposes of collective bargaining
have been cast in favor of representation by the labor organization,
the Board shall issue an order requiring the employer to collectively
bargain with the labor organization in accordance with section 8(d).
``(5) Dismissal; Bargaining Orders in Other Situations.--
``(A) Dismissal.--If the Board finds that, in an election
under paragraph (1), a majority of the valid votes cast in a
unit appropriate for purposes of collective bargaining have not
been cast in favor of representation by the labor organization,
the Board shall dismiss the petition, subject to subparagraphs
(B) and (C).
``(B) Special rules for employer violations or
interference.--In any case where a majority of the valid votes
cast in a unit appropriate for purposes of collective
bargaining have not been cast in favor of representation by the
labor organization and the Board determines that the election
should be set aside because the employer has committed a
violation of this Act, or otherwise interfered with a fair
election, and has not demonstrated that the violation or other
interference is unlikely to have affected the outcome of the
election, the Board shall, without ordering a new or rerun
election, issue an order requiring the employer to bargain with
the labor organization in accordance with section 8(d) if, at
any time during the period beginning 1 year preceding the date
of the commencement of the election and ending on the date upon
which the Board makes the determination of a violation or other
interference under subparagraph (A), a majority of the
employees in the bargaining unit have signed authorizations
designating the labor organization as their collective
bargaining representative.
``(C) Other election interference.--In any case where the
Board determines that an election under this paragraph should
be set aside, the Board shall direct a rerun election with
appropriate additional safeguards necessary to ensure a fair
election process, except in cases where the Board issues a
bargaining order under subparagraph (B).''.
SEC. 5. MODERNIZATION.
(a) Prevention of Unfair Labor Practices.--Section 8 of the
National Labor Relations Act (29 U.S.C. 158) is amended by adding at
the end the following:
``(h) Postings of Notice.--
``(1) In general.--The Board shall promulgate regulations
requiring each employer to post and maintain, in conspicuous
places where notices to employees and applicants for employment
are customarily posted both physically and electronically, a
notice setting forth the rights and protections afforded
employees under this Act. The Board shall provide to employers
the form and text of such notice.
``(2) Notification of new employees.--The Board shall
promulgate regulations requiring employers to notify each new
employee of the information contained in the notice described
in paragraph (1).''.
(b) Enforcing Compliance With Orders of the Board.--
(1) In general.--Section 10 of the National Labor Relations
Act (29 U.S.C. 160) is amended--
(A) by striking subsection (e);
(B) by redesignating subsection (d) as subsection
(e); and
(C) by inserting after subsection (c) the
following:
``(d) Enforcing Compliance With Orders of the Board.--
``(1) In general.--Each order of the Board shall take
effect 30 days from the date upon which notice of the order is
given, unless otherwise directed by the Board. Each such orders
shall continue in force indefinitely or for the period of time
specified in the order, or until the Board or a court of
competent jurisdiction issues a superseding order.
``(2) Application of the board.--If any person or entity
fails or neglects to obey any order of the Board while such
order is in effect, the Board shall apply to the district court
of the United States in which the unfair labor practice or
other subject of the order occurred, or in which such person or
entity resides or transacts business, for the enforcement of
such order. The Board shall file in the court the record in the
proceedings, as provided in section 2112 of title 28, United
States Code. Any person that was a party to the underlying
Board proceeding may join in the proceeding initiated by the
Board.
``(3) Procedure.--If, after having provided a person or
entity with notice and an opportunity to be heard regarding a
request under paragraph (2) for the enforcement of an order,
the court determines that the order was regularly made and duly
served, and that the person or entity is in disobedience of the
same, the court shall enforce obedience to such order by a writ
of injunction or other proper process, mandatory or otherwise,
to--
``(A) restrain such person or entity or the
officers, agents, or representatives of such person or
entity, from further disobedience of such order; or
``(B) enjoin upon such person or entity, officers,
agents, or representatives obedience to the same.
``(4) Violations of orders by the board.--Any person or
entity who willfully and knowingly violates any rule,
regulation, restriction, condition, or order made or imposed by
the Board under authority of this Act shall, in addition to any
other penalties provided by law, be subject to a civil penalty
of not to exceed $10,000 for each and every day during which
such violation occurs, commencing with the effective date of
any such rule, regulation, restriction, condition, or order.
Such civil penalty may be imposed by the Board or by a court in
a proceeding initiated by the Board under this subsection.''.
(2) Conforming amendments.--The National Labor Relations
Act (29 U.S.C. 151 et seq.) is amended--
(A) in section 9(d), by striking ``section 10(e) or
10(f)'' and inserting ``subsection (d) or (f) of
section 10''; and
(B) in section 10--
(i) in subsection (f), by striking
``subsection (e) of this section'' and
inserting ``subsection (d)''; and
(ii) in subsection (g), by striking
``subsection (e) or (f) of this section'' and
inserting ``subsection (d) or (f)''.
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