As a candidate, Joe Biden pledged to send to Congress a set of policies to "build worker power to raise wages and secure stronger benefits."
On March 9, the House passed the Protecting the Right to Organize Act, or PRO Act, which would enhance leverage for labor unions. But the bill — which passed with only five Republican votes — has not advanced in the Senate.
However, a provision from the PRO Act has been included in a version of the Build Back Better bill, the safety net measure that includes many agenda items supported by Biden. It has passed the House and is now under consideration in the Senate.
On Dec. 11, 2021, the Senate Health, Education, Labor and Pensions Committee approved a version of the Build Back Better bill that includes a provision addressing civil penalties for labor violations that is included in the PRO Act.
The provision would change the National Labor Relations Act to impose civil penalties on employers who commit an unfair labor practice, including the potential for individual liability for officers or directors.
The proposed fines could reach $50,000 per violation, or $100,000 for willful violations or if there is "serious economic harm" to an employee, according to an analysis by the law firm Proskauer Rose LLP.
"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 (such as back pay) and/or by equitable means (such as reinstatement of a bargaining unit member who was improperly terminated)," wrote Proskauer lawyers Joshua Fox and Timothy Kelly.
The vast majority of the PRO Act has not been included in the Senate's Build Back Better measure and remains stalled in the Senate. Moreover, it is uncertain whether the labor provision will make it to the final version of Build Back Better that is considered in the chamber, including a decision by the parliamentarian whether it is sufficiently fiscal in nature to be included in a budget reconciliation bill. Finally, if it does make it into the final bill, there's no certainty that the larger bill will be approved by the Senate and reconciled with the House version.
Still, the inclusion of a portion of the PRO Act in the Build Back Better bill represents an advance for at least part of Biden's labor agenda, so we rate this promise In the Works.