Bill Would Greatly Expand Penalties, Remedies for Unfair Labor Practices

Democratic lawmakers introduced legislation on September 16, 2015 that would greatly expand the remedial scope of the National Labor Relations Act. Crafted with input from labor leaders, the Workplace Action for a Growing Economy (WAGE) Act would, among other things, provide employees with a private right to sue their employers in federal court for unfair labor practices, allow corporate officers to be held personally liable for NLRA violations, enhance the National Labor Relations Board's authority to seek redress for complainants, and authorize the award of civil fines against employers. While the measure has virtually no chance of being enacted this term, it serves as a "message" bill that will likely be referenced in the lead-up to the 2016 elections.

Introduced by Sen. Patty Murray (D-WA) and Rep. Bobby Scott (D-VA), the WAGE Act would first and foremost strengthen the penalties that the Board could assess against an employer charged with violating an employee's Section 8(a) rights. Under the terms of the bill, an employer could be liable for back pay in addition to liquidated damages in the amount of double back pay.  Violations deemed to result in "serious economic loss" to the employee could result in additional civil penalties of up to $50,000 per violation, or up to $100,000 per violation if the employer is a repeat offender.  Corporate officers could be held personally liable.

Notably, in the wake of the Board's recent expansion of joint employment under the NLRA through its Browning-Ferris decision, employers would be held jointly and severally liable for any violations of the WAGE Act involving one or more employees "supplied by another employer to perform labor within the employer’s usual course of business."

The WAGE Act would mandate that the Board seek injunctive relief when there is a reasonable belief the employee was fired for engaging in NLRA-protected activity.  In addition, the Board would be required to issue a bargaining order if, following an election, "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." If the employer is found to have interfered with an election in which a majority of workers expressed interest in representation, the Board would also be given the authority to issue a bargaining order.

The measure sets up a 30-day time limit for challenging an NLRB decision. Once that time elapses, the decision would become final and binding unless judicially challenged.

Additional provisions of the WAGE Act would give employees the right to file suit in federal court: "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."

The legislation builds upon recent labor gains, including last month's Browning-Ferris decision and the expedited representation election regulations, which took effect on April 14 of this year. While the WAGE Act is not expected to become law, its provisions will serve as political talking points in the months ahead. 

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.