As we have discussed previously (here, here, here and here), Congressional Democrats have been attempting to amend the National Labor Relations Act (“NLRA”) for the last few years.  However, attempts to invoke sweeping changes to a number of areas of the NLRA through the Protect the Right to Organize Act (“PRO Act”) have stalled in Congress.

The most recent proposed amendment to the NLRA as part of the Build Back Better Act (“BBB Act”) would impose civil penalties on an employer who commits an unfair labor practice, including potential individual liability to officers or directors.  The proposed fines in the BBB Act are up to $50,000 per violation, or up to $100,000, for willful violators or if there is “serious economic harm” to an employee. This would represent a dramatic change to the enforcement of the NLRA, as historically, the NLRA’s remedy for employer unfair labor practices has been to compensate the aggrieved party with money (e.g., backpay) and/or by equitable means (e.g., reinstatement of a bargaining unit member who was improperly terminated).

As we discussed here, the House passed the BBB Act on November 19, 2021.  While the BBB Act still faces significant hurdles in the Senate, on December 11, 2021, the Senate Health, Education, Labor and Pensions Committee approved text of the BBB Act containing the same NLRA civil-penalties language that was contained in the House bill.

A version of the BBB Act–which includes a number of other tax and spending measures having nothing to do with the NLRA–is expected to go to a vote before the entire Senate in the coming weeks.

We will be sure to keep you updated with developments.