117 S3889 IS: Employee Rights Act
U.S. Senate
2022-03-22
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
II
117th CONGRESS
2d Session
S. 3889
IN THE SENATE OF THE UNITED STATES
March 22, 2022
Mr. Scott of South Carolina (for himself, Mr. McConnell, Mr. Thune, Mr. Barrasso, Mr. Burr, Mr. Braun, Mr. Marshall, Mr. Moran, Mr. Tuberville, Mr. Risch, Mr. Crapo, Mr. Cornyn, Mr. Daines, Ms. Lummis, Mrs. Hyde-Smith, Mr. Hagerty, Mr. Boozman, Mr. Wicker, Mr. Tillis, Mr. Cramer, Mr. Romney, Mr. Cotton, Mr. Inhofe, Mr. Johnson, and Mr. Cassidy) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To reform the labor laws of the United States, and for other purposes.
1.

Short title
This Act may be cited as the “Employee Rights Act”.
2.

Table of contents
The table of contents of this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—Enhancing employee rights
Sec. 101. Enhanced Employee Rights.
Sec. 102. Interference with commerce by threats or violence.
Sec. 103. Additional labor rights under the National Labor Relations Act.
TITLE II—Employee Benefits and Advancement
Sec. 201. Payment of higher wages.
Sec. 202. Employment relationships.
Sec. 203. Preventing Federal actions that cause job losses.
TITLE III—Structural reforms
Sec. 301. Tribal Sovereignty.
Sec. 302. Labor organizations required to file Form T–1 Trust Annual Reports.
TITLE IV—Additional reforms to existing labor rights and protections
Sec. 401. Notice of rights and protections; voter registration lists.
Sec. 402. Labor organization use of personal information.
Sec. 403. Notices for labor organization cards declaring purpose and disclosure of dues and fees.
I

Enhancing employee rights
101.

Enhanced Employee Rights
(a)

Amendments to the National Labor Relations Act
(1)

Unfair labor practices
Section 8(b)(1) of the National Labor Relations Act (29 U.S.C. 158(b)(1)) is amended by striking “restrain or” and inserting “interfere with, restrain, or”.
(2)

Representatives and elections
The National Labor Relations Act is amended—
(A)
in section 8 (29 U.S.C. 158), by adding at the end the following:
“(h)
(1)
Except as described in paragraph (3), it shall not be an unfair labor practice under subsection (a) for an employer that, not more than 90 days prior to the expiration of a collective bargaining agreement in effect between a representative of employees of the employer in a bargaining unit and the employer, receives evidence that the majority of the employees in the unit do not support the representative for purposes of collective bargaining to refuse to bargain collectively with the representative prior to the expiration of the agreement for the purpose of negotiating a new or renewed collective bargaining agreement.
(2)
An employer that refuses to bargain collectively in accordance with paragraph (1) shall provide notice of the refusal to the representative of the bargaining unit on the date of such refusal.
(3)
(A)
It shall be an unfair labor practice for an employer described in paragraph (1) to refuse to bargain collectively with the representative of the bargaining unit described in such paragraph for the purpose of negotiating a new or renewed collective bargaining agreement prior to the expiration of the agreement in effect between the representative and the employer if the representative reestablishes in accordance with subparagraph (B) that a majority of the employees in the unit for purposes of collective bargaining support the representative.
(B)
A representative reestablishes majority support under subparagraph (A), if, not more than 45 days after the date of the notice of refusal under paragraph (2), the representative, in accordance with section 9, files a petition with the Board and is selected for purposes of collective bargaining by secret ballot, in an election conducted by the Board, by the majority of the employees in the unit.”; and
(B)
in section 9(a) (29 U.S.C. 159(a))—
(i)
by striking “designated or selected for the purposes of collective bargaining” and inserting “for the purposes of collective bargaining selected by secret ballot in an election conducted by the Board,”; and
(ii)
by inserting before the period the following: “: Provided further, That, for purposes of determining the majority of the employees in a secret ballot election in a unit, the term “majority” shall mean the majority of all the employees in the unit, and not the majority of employees voting in the election: Provided further, That, for any bargaining unit that is voluntarily recognized for the purposes of collective bargaining as of the date of enactment of the Employee Rights Act, the Board shall, not later than 120 days after such date of enactment, conduct a secret ballot election among the represented employees in the bargaining unit and, if a majority of the votes cast in such election reject the continuing representation by the labor organization, the labor organization shall cease representation of employees in the bargaining unit and any obligations to or on behalf of the labor organization in a collectively bargained contract then in effect shall terminate”.
(3)

Fair representation in elections
Section 9 of the National Labor Relations Act (29 U.S.C. 159) is amended—
(A)
in subsection (b), by inserting “prior to an election” after “in each case”; and
(B)
in subsection (c)—
(i)
in the flush matter following paragraph (1)(B)—
(I)
by inserting “of 14 days in advance” after “appropriate hearing upon due notice”;
(II)
by inserting “, and a review of post-hearing appeals,” after “the record of such hearing”; and
(III)
by adding at the end the following: “The employer shall provide the Board a list consisting only of employee names and home addresses of all eligible voters within 7 days following the Board’s determination of the appropriate unit or following any agreement between the employer and the labor organization regarding the eligible voters. Any employee may elect to be excluded from such list by notifying the employer in writing.”; and
(ii)
by adding at the end the following:
“(6)
(A)
No election shall take place after the filing of any petition unless and until—
(i)
a hearing is conducted before a qualified hearing officer in accordance with due process on any and all material, factual issues regarding jurisdiction, statutory coverage, appropriate unit, unit inclusion or exclusion, or eligibility of individuals; and
(ii)
the issues are resolved by a regional director, subject to appeal and review, or by the Board.
(B)
No election results shall be final and no labor organization shall be certified as the bargaining representative of the employees in an appropriate unit unless and until—
(i)
the Board has ruled on each pre-election issue not resolved before the election; and
(ii)
the Board conducts a hearing in accordance with due process and resolves each issue pertaining to the conduct or results of the election.”.
(4)

Penalties
Section 10(c) of the National Labor Relations Act (29 U.S.C. 160(c)) is amended by inserting before “And provided further” the following: “Provided further, That in a case the Board has found that any labor organization has interfered with, restrained, or coerced employees in the exercise of their rights under section 7 to form or join a labor organization or to refrain therefrom, including the filing of a decertification petition, the Board shall order the labor organization to be liable to the affected employees for wages lost and labor organization dues or fees collected unlawfully, if any, and an additional amount as liquidated damages: Provided further, That any labor organization found to have interfered with, restrained, or coerced an employee in connection with the filing of a decertification petition shall be prohibited from filing objections to an election held pursuant to such petition:”.
(b)

Amendments to the Labor-Management Reporting and Disclosure Act of 1959
(1)

Definition
Section 3(k) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 402(k)) is amended by striking “ballot, voting machine, or otherwise, but” and inserting “paper ballot, voting machine, or electronic ballot cast in the privacy of a voting booth and”.
(2)

Rights of members
Section 101(a)(1) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411(a)(1)) is amended by adding at the end the following “Every employee in a bargaining unit represented by a labor organization, regardless of membership status in the labor organization, shall have the same right as members to vote by secret ballot regarding whether to ratify a collective bargaining agreement with, or to engage in a strike or refusal to work of any kind against, their employer.”.
(3)

Right not to subsidize labor organization nonrepresentational activities
Title I of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411 et seq.) is amended by adding at the end the following:
“106.

Right not to subsidize labor organization nonrepresentational activities
No employee’s labor organization dues, fees, assessments, or other contributions shall be used or contributed to any person, organization, or entity for any purpose not directly related to the labor organization’s collective bargaining or contract administration functions on behalf of the represented unit employee unless the employee member, or nonmember required to make such payments as a condition of employment, authorizes such expenditure in writing, after a notice period of not less than 35 days. An initial authorization provided by an employee under the preceding sentence shall expire not later than 1 year after the date on which such authorization is signed by the employee. There shall be no automatic renewal of an authorization under this section.”.
(4)

Limitations
Section 101(a) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 411(a)) is amended by adding at the end the following:
“(6)

Limitation
No strike shall commence without the consent of a majority of all represented unit employees affected, determined by a secret ballot vote conducted by a neutral, private organization chosen by agreement between the employer and the labor organization involved. In any case in which the employer involved has made an offer for a collective bargaining agreement, the represented unit employees involved shall be provided the opportunity for a secret ballot vote on such offer prior to any vote relating to the commencement of a strike. The cost of any such election shall be borne by the labor organization.”.
(5)

Reporting by labor organizations
Section 201(c) of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 431(c)) is amended—
(A)
by inserting “and the independently verified annual audit report of the labor organization’s financial condition and operations” after “required to be contained in such report”;
(B)
by inserting “and represented unit nonmembers” after “members”;
(C)
by inserting “and represented unit nonmember” after “any member”;
(D)
by inserting “or represented unit nonmember” after “to permit such member”;
(E)
by striking “and” after “any books, records,”; and
(F)
by striking “necessary to verify such report” and inserting “, and independently verified annual audit report of the labor organization’s financial condition and operations necessary to verify such report required to be submitted under this title”.
(6)

Acts of violence
Section 610 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 530) is amended—
(A)
by striking “It shall” and inserting “(a) It shall”; and
(B)
by adding at the end the following:
“(b)
It shall be unlawful for any person, through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or intimidate, or attempt to restrain, coerce, or intimidate any person for the purpose of obtaining from any person any right to represent employees or any compensation or other term or condition of employment. Any person who willfully violates this subsection shall be fined not more than $100,000 or imprisoned for not more than 10 years, or both.
(c)
The lawfulness of a labor organization’s objectives shall not remove or exempt from the definition of extortion conduct by the labor organization or its agents that otherwise constitutes extortion as defined by section 1951(b)(2) of title 18, United States Code.”.
102.

Interference with commerce by threats or violence
Section 1951 of title 18, United States Code, is amended to read as follows:
“1951.

Interference with commerce by threats or violence
(a)

Prohibition
Except as provided in subsection (c), whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion, or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section, shall be fined not more than $100,000, imprisoned for a term of not more than 20 years, or both.
(b)

Definitions
For purposes of this section—
(1)
the term commerce means any—
(A)
commerce within the District of Columbia, or any territory or possession of the United States;
(B)
commerce between any point in a State, territory, possession, or the District of Columbia and any point outside thereof;
(C)
commerce between points within the same State through any place outside that State; and
(D)
other commerce over which the United States has jurisdiction;
(2)
the term extortion means the obtaining of property from any person, with the consent of that person, if that consent is induced—
(A)
by actual or threatened use of force or violence, or fear thereof;
(B)
by wrongful use of fear not involving force or violence; or
(C)
under color of official right;
(3)
the term labor dispute has the same meaning as in section 2(9) of the National Labor Relations Act (29 U.S.C. 152(9)); and
(4)
the term robbery means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his or her will, by means of actual or threatened force or violence, or fear of injury, immediate or future—
(A)
to his or her person or property, or property in his or her custody or possession; or
(B)
to the person or property of a relative or member of his or her family, or of anyone in his or her company at the time of the taking or obtaining.
(c)

Exempted conduct
(1)

In general
Subsection (a) does not apply to any conduct that—
(A)
is incidental to otherwise peaceful picketing during the course of a labor dispute;
(B)
consists solely of minor bodily injury, or minor damage to property, or threat or fear of such minor injury or damage; and
(C)
is not part of a pattern of violent conduct or of coordinated violent activity.
(2)

State and local jurisdiction
Any violation of this section that involves any conduct described in paragraph (1) shall be subject to prosecution only by the appropriate State and local authorities.
(d)

Effect on other law
Nothing in this section shall be construed—
(1)
to repeal, amend, or otherwise affect—
(A)
section 6 of the Clayton Act (15 U.S.C. 17);
(B)
section 20 of the Clayton Act (29 U.S.C. 52);
(C)
any provision of the Norris-LaGuardia Act (29 U.S.C. 101 et seq.);
(D)
any provision of the National Labor Relations Act (29 U.S.C. 151 et seq.); or
(E)
any provision of the Railway Labor Act (45 U.S.C. 151 et seq.); or
(2)
to preclude Federal jurisdiction over any violation of this section, on the basis that the conduct at issue—
(A)
is also a violation of State or local law; or
(B)
occurred during the course of a labor dispute or in pursuit of a legitimate business or labor objective.”.
103.

Additional labor rights under the National Labor Relations Act
(a)

Religious conscientious exemption
Section 19 of the National Labor Relations Act (29 U.S.C. 169) is amended—
(1)
by striking “Any employee” and inserting “(a) Any employee”;
(2)
by striking “; except that” and all that follows through “chosen by the employee”; and
(3)
by adding at the end the following:
“(b)
(1)
Notwithstanding any other provision in this Act, a qualified employer shall not be required to comply with any provision in this Act that requires the employer to recognize, bargain with, or financially support any labor organization.
(2)
For purposes of this subsection—
(A)
the term qualified employer means an employer—
(i)
that has a board of directors, of which a majority of the individuals serving on such board are qualified individuals;
(ii)
that has a stock, of which the majority is owned or controlled by a qualified individual or qualified individuals; or
(iii)
whose management is controlled, in majority, by a qualified individual or qualified individuals; and
(B)
the term qualified individual means an individual who is a member of and adheres to established and traditional tenets or teachings of a bona fide religion, body, or sect which has historically held conscientious objections to recognizing, bargaining with, or financially supporting labor organizations.”.
(b)

New elections in cases of labor organization misconduct
Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)), as amended by section 101(a)(3)(B), is further amended by adding at the end the following:
“(7)
In any case in which the Board determines that the results of an election under this subsection were influenced by the misconduct of a labor organization, including misconduct through interference, restraint, or coercion of an employee with respect to such election, the Board shall set aside the results of such election and order a new election with appropriate additional safeguards necessary to ensure a fair election process.”.
(c)

Rights of employers regarding employer-issued technology
The National Labor Relations Act (29 U.S.C. 151 et seq.) is amended—
(1)
by inserting after section 7 (29 U.S.C. 157) the following:
“7A.

Rights of employers regarding employer-issued technology
An employer shall have the right to determine how technology issued by the employer (including communication devices and systems) is used by employees and to prohibit employees from using any such technology for efforts to form, join, or assist a labor organization.”; and
(2)
in section 8 (29 U.S.C. 158), as amended by section 101(a)(2)(A), by adding at the end the following:
“(i)
It shall be an unfair labor practice for an employee or a labor organization to interfere with the right of an employer under section 7A, including by violating or encouraging employees to violate a prohibition of an employer described in such section.”.
(d)

Rejecting arbitrated first collective bargaining agreements
Section 9 of the National Labor Relations Act (29 U.S.C. 159) is amended by adding at the end the following:
“(f)
Notwithstanding any other provision of law, in the case of any collective bargaining agreement that was made through arbitration and that is the first such agreement between an employer and a labor organization, the employees covered by such agreement shall have the right to vote on the ratification of such agreement through a secret ballot election. In the case that such employees exercise such right and a majority of the employees vote against ratifying the agreement, the agreement shall be null and void.”.
(e)

Waiting period after failed labor organization vote
Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)), as amended by subsection (b), is further amended—
(1)
in paragraph (3), by striking the first sentence; and
(2)
by adding at the end the following:
“(8)
(A)
Subject to subparagraph (B), no election shall be conducted pursuant to this subsection in any bargaining unit within which, in the preceding 2-year period, a valid election was held and a majority of the employees in such bargaining unit voted against representation.
(B)
An election may be held in a case described in subparagraph (A) during the period described in such subparagraph if the bargaining unit described in such subparagraph experiences turnover, expansion, or alteration by merger of unit represented employees exceeding 50 percent of the bargaining unit on the date on which the election resulting in a majority of the employees in the unit voting against representation occurred.”.
(f)

Collective or class actions
Section 7 of the National Labor Relations Act (29 U.S.C. 157) is amended by adding at the end the following: “Nothing in this section shall confer the right of an employee to support or engage in a class or collective action.”.
II

Employee Benefits and Advancement
201.

Payment of higher wages
Section 9(a) of the National Labor Relations Act (29 U.S.C. 159(a)) is amended—
(1)
by inserting “(1)” after “(a)”; and
(2)
by adding at the end the following:
“(2)
Notwithstanding a labor organization’s exclusive representation of employees in a unit, or the terms and conditions of any collective bargaining contract or agreement then in effect, nothing in either—
(A)
paragraph (1) or (5) of section 8(a), or
(B)
a collective bargaining contract or agreement renewed or entered into after the date of enactment of the Employee Rights Act,
shall prohibit an employer from paying an employee in the unit greater wages, pay, or other compensation for, or by reason of, his or her services as an employee of such employer, than provided for in such contract or agreement.”.
202.

Employment relationships
(a)

Amendments to the Fair Labor Standards Act of 1938 To harmonize the definition of employee
(1)

Definition of employee
Section 3(e)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(e)(1)) is amended by inserting before the period the following: “, as determined under the usual common law rules”.
(2)

Definition of employ
Section 3(g) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(g)) is amended by inserting “an employee” after “permit”.
(b)

Clarification of joint employment
(1)

National Labor Relations Act
Section 2(2) of the National Labor Relations Act (29 U.S.C. 152(2)) is amended—
(A)
by striking “The term “employer”” and inserting “(A) The term “employer””; and
(B)
by adding at the end the following:
“(B)
An employer may be considered a joint employer of the employees of another employer only if each employer directly, actually, and immediately, and not in a limited and routine manner, exercises significant control over the essential terms and conditions of employment of the employees of the other employer, such as hiring such employees, discharging such employees, determining the rate of pay and benefits of such employees, supervising such employees on a day-to-day basis, assigning such employees a work schedule, position, or task, or disciplining such employees.”.
(2)

Fair Labor Standards Act of 1938
Section 3(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 203(d)) is amended—
(A)
by striking ““Employer” includes” and inserting “(1) “Employer” includes”; and
(B)
by adding at the end the following:
“(2)
An employer may be considered a joint employer of the employees of another employer for purposes of this Act only if each employer meets the criteria set forth in section 2(2)(B) of the National Labor Relations Act (29 U.S.C. 152(2)(B)) except that, for purposes of determining joint-employer status under this Act, the terms “employee” and “employer” referenced in such section shall have the meanings given such terms in this section.”.
(c)

Benefits for individuals accessing work through a digital marketplace company
(1)

In general
Notwithstanding any other provision of law, the fact that an individual accessing work through a digital marketplace company receives retirement or fringe benefits from such digital marketplace company shall not establish, or support the establishment of, an employee and employer relationship between the individual accessing work through a digital marketplace company and the digital marketplace company, respectively, under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), or any other Federal law.
(2)

Definitions
In this subsection:
(A)

Digital marketplace company
The term digital marketplace company means a business entity affecting commerce that—
(i)
(I)
maintains an online-enabled application or platform to facilitate the exchange of goods or services by users of the online-enabled application or platform; or
(II)
licenses access to an online-enabled application or platform to facilitate the exchange of goods or services; and
(ii)
does not require a licensee using the online-enabled application or platform to generate business to accept any specific job request as a condition of maintaining access to the entity's online-enabled application or platform.
(B)

Individual accessing work through a digital marketplace company
The term individual accessing work through a digital marketplace company means an individual who—
(i)
is provided with the option to accept or reject job requests through an online-enabled application or platform maintained by a digital marketplace company; and
(ii)
provides services to digital platform consumers upon connection through a digital network maintained by the digital marketplace company in exchange for compensation or payment of a fee.
(d)

Provision of technical assistance
Notwithstanding any other provision of law, under the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), the National Labor Relations Act (29 U.S.C. 151 et seq.), or any other Federal law, neither of the following may be construed, alone or in combination with any other factor, as establishing an employer and employee relationship between a franchisor (or any employee of the franchisor) and a franchisee (or any employee of the franchisee):
(1)
The franchisor (or any employee of the franchisor) provides the franchisee (or any employee of the franchisee) with, or requires such franchisee (or any employee of the franchisee) to use, a handbook, or other training, on sexual harassment, human trafficking, workplace violence, discrimination, or opportunities for apprenticeships or scholarships.
(2)
The franchisor (or any employee of the franchisor) requires the franchisee (or any employee of the franchisee) to adopt a policy on sexual harassment, human trafficking, workplace violence, discrimination, opportunities for apprenticeships or scholarships, child care, or paid leave, including a requirement for such franchisee (or any employee of the franchisee) to report to the franchisor (or any employee of the franchisor) any violations or suspected violations of such policy.
(e)

Protection of employer rights
(1)

Purposes
The purposes of this subsection are—
(A)
to preserve the balance of rights between employers, employees, and labor organizations; and
(B)
to alleviate pressure on employers to hire individuals who seek or gain employment in order to disrupt the workplace of the employer or otherwise inflict economic harm designed to put the employer out of business.
(2)

Clarification of employer rights regarding hiring
Section 8 of the National Labor Relations Act (29 U.S.C. 158), as amended by section 103(c)(2), is further amended by adding at the end the following:
“(j)
Nothing in subsection (a) shall be construed as requiring an employer to employ any person who seeks or has sought employment with the employer in furtherance of other employment or membership in a labor organization.”.
203.

Preventing Federal actions that cause job losses
(a)

Definitions
In this section:
(1)

Agency; rule
The terms agency and rule have the meanings given those terms in section 551 of title 5, United States Code.
(2)

Director
The term Director means the Director of the Office of Management and Budget.
(3)

Employer
The term employer has the meaning given the term in section 2 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101).
(4)

Mass layoff; plant closing
The terms mass layoff and plant closing have the meanings given those terms in section 2 of the Worker Adjustment and Retraining Notification Act (29 U.S.C. 2101), except that those terms do not include a mass layoff or plant closing described in section 4 of that Act (29 U.S.C. 2103).
(5)

Rescission resolution
The term rescission resolution means a joint resolution—
(A)
relating to an Executive order for which the Director has submitted notice to Congress under subsection (d)(2) that the Executive order is likely to result in an employer ordering a plant closing or mass layoff;
(B)
which does not have a preamble;
(C)
the title of which is as follows: “Joint resolution relating to nullifying the Executive Order relating to ___.”, the blank space being filled in with the title of the Executive order; and
(D)
the matter after the resolving clause of which is as follows: “That—
“(1)
effective as if enacted on the date on which the Executive Order was issued, the provisions of Executive Order ____, entitled “______” are rescinded and shall have no force or effect; and
(2)
none of the funds appropriated or otherwise made available by any Act may be used to implement, administer, or otherwise carry out the Executive Order described in paragraph (1), or any successor Executive order or regulation.”, the blank spaces being filled in with the number and title, respectively, of the Executive order.
(6)

State
The term State means—
(A)
a State;
(B)
the District of Columbia;
(C)
the Commonwealth of Puerto Rico; and
(D)
any other territory or possession of the United States.
(b)

Review process of agency rules
(1)

In general
The head of an agency shall include in each report relating to a rule submitted to each House of Congress and the Comptroller General of the United States under section 801(a)(1)(A) of title 5, United States Code, a regulatory impact statement that includes—
(A)
a determination of whether the rule is likely to result in an employer ordering—
(i)
a plant closing; or
(ii)
a mass layoff; and
(B)
if the head of the agency makes a positive determination under subparagraph (A), a list of each State in which an employer is likely to order a plant closing or mass layoff as a result of the rule.
(2)

Considerations
In making a determination on a rule under paragraph (1)(A), the head of an agency shall consider comments received from the public.
(3)

Notification
Not later than the date on which the head of an agency issues a rule for which the head of the agency makes a positive determination under paragraph (1)(A), the head of the agency shall notify—
(A)
the Governor of any State included in a list described in paragraph (1)(B) of the likelihood of an employer ordering a plant closing or mass layoff in that State as a result of the rule; and
(B)
any employees likely to be impacted by an employer ordering a plant closing or mass layoff that may occur as a result of the rule.
(c)

Time limit for congressional review inapplicable
With respect to a rule for which the head of an agency makes a positive determination under subsection (b)(1)(A), the period during which a joint resolution described in section 802(a) of title 5, United States Code, relating to the rule may be introduced shall be unlimited.
(d)

Review process of executive orders
(1)

In general
Not later than 7 days after the date on which the President issues an Executive order, the Director shall determine whether the Executive order is likely to result in an employer ordering a mass layoff or plant closing.
(2)

Notification
Not later than 15 days after the date on which the President issues an Executive order for which the Director makes a positive determination under paragraph (1), the Director shall submit a notice to Congress and the Governor of any State in which an employer is likely to order a plant closing or mass layoff as a result of the Executive order, which shall contain the following message:
“In accordance with section 203 of the Employee Rights Act, I am notifying you that the President has issued Executive Order Number ___, which I have determined would likely result in an employer ordering a plant closing or mass layoff at _____.”, the blank spaces being filled in with the number of the Executive order and the address of the single site of employment at which an employer is likely to order a plant closing or mass layoff, respectively.
(e)

Nullification of executive actions
(1)

In general
It shall be in order, not later than 60 days (excluding days either House of Congress is adjourned for more than 3 days during a session of Congress) after the date on which the Director notifies Congress of an Executive order that is likely to result in an employer ordering a plant closing or mass layoff under subsection (d)(2), to introduce a rescission resolution in the House of Representatives or the Senate with respect to the Executive order.
(2)

Congressional consideration of proposed rescission resolutions
(A)

Procedure in House and Senate
(i)

Referral
Any rescission resolution introduced under paragraph (1) shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be.
(ii)

Discharge of committee
(I)

In general
If the committee to which a rescission resolution with respect to an Executive order has been referred has not reported it at the end of 25 calendar days of continuous session of the Congress after its introduction, it is in order to move to—
- (aa)
discharge the committee from further consideration of the rescission resolution; or
- (bb)
discharge the committee from further consideration of any other rescission resolution with respect to the same Executive order, which has been referred to the committee.
(II)

Motion to discharge
A motion to discharge may be made only by an individual favoring the rescission resolution and may be made only if supported by one-fifth of the Members of the House involved (a quorum being present). The motion is highly privileged in the House and privileged in the Senate (except that it may not be made after the committee has reported a rescission resolution with respect to the same Executive order) and debate thereon shall be limited to not more than 1 hour, the time to be divided in the House equally between those favoring and those opposing the rescission resolution, and to be divided in the Senate equally between, and controlled by, the majority leader and the minority leader or their designees. An amendment to the motion is not in order, and it is not in order to move to reconsider the vote by which the motion is agreed to or disagreed to.
(iii)

Floor consideration in the House
(I)
When the committee of the House of Representatives has reported, or has been discharged from further consideration of a rescission resolution, it shall at any time thereafter be in order (even though a previous motion to the same effect has been disagreed to) to move to proceed to the consideration of the rescission resolution. The motion shall be highly privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to.
(II)
Debate on a rescission resolution shall be limited to not more than 2 hours, which shall be divided equally between those favoring and those opposing the rescission resolution or resolution. A motion further to limit debate shall not be debatable. It shall not be in order to move to reconsider the vote by which a rescission resolution is agreed to or disagreed to.
(III)
Motions to postpone, made with respect to the consideration of a rescission resolution, and motions to proceed to the consideration of other business, shall be decided without debate.
(IV)
All appeals from the decisions of the Chair relating to the application of the Rules of the House of Representatives to the procedure relating to any rescission resolution shall be decided without debate.
(V)
Except to the extent specifically provided in the preceding provisions of this subsection, consideration of any rescission resolution and amendments thereto (or any conference report thereon) shall be governed by the Rules of the House of Representatives applicable to other rescission resolutions and resolutions, amendments, and conference reports in similar circumstances.
(iv)

Floor consideration in the Senate
(I)
Debate in the Senate on any rescission resolution, and all amendments thereto and debatable motions and appeals in connection therewith, shall be limited to not more than 10 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees.
(II)
Debate in the Senate on any amendment to a rescission resolution shall be limited to 2 hours, to be equally divided between, and controlled by, the mover and the manager of the rescission resolution. Debate on any amendment to an amendment, to such a rescission resolution, and debate on any debatable motion or appeal in connection with such a rescission resolution shall be limited to 1 hour, to be equally divided between, and controlled by, the mover and the manager of the rescission resolution, except that in the event the manager of the rescission resolution is in favor in any such amendment, motion, or appeal, the time in opposition thereto, shall be controlled by the minority leader or his designee. No amendment that is not germane to the provisions of a rescission resolution shall be received. Such leaders, or either of them, may, from the time under their control on the passage of a rescission resolution, allot additional time to any Senator during the consideration of any amendment, debatable motion, or appeal.
(III)
A motion to further limit debate is not debatable. A motion to recommit a rescission resolution (except a motion to recommit with instructions to report back within a specified number of days, not to exceed 3, excluding any day on which the Senate is not in session) is not in order. Debate on any such motion to recommit shall be limited to one hour, to be equally divided between, and controlled by, the mover and the manager of the concurrent resolution.
(IV)
The conference report on any rescission resolution shall be in order in the Senate at any time after the third day (excluding Saturdays, Sundays, and legal holidays) following the day on which such a conference report is reported and is available to Members of the Senate. A motion to proceed to the consideration of the conference report may be made even though a previous motion to the same effect has been disagreed to.
(V)
During Senate consideration of the conference report on any rescission resolution, debate shall be limited to 2 hours, to be equally divided between, and controlled by, the majority leader and minority leader or their designees. Debate on any debatable motion or appeal related to the conference report shall be limited to 30 minutes, to be equally divided between, and controlled by, the mover and the manager of the conference report.
(VI)
Should the conference report be defeated, debate on any request for a new conference and the appointment of conferees shall be limited to one hour, to be equally divided, between, and controlled by, the manager of the conference report and the minority leader or his designee, and should any motion be made to instruct the conferees before the conferees are named, debate on such motion shall be limited to 30 minutes, to be equally divided between, and controlled by, the mover and the manager of the conference report. Debate on any amendment to any such instructions shall be limited to 20 minutes, to be equally divided between, and controlled by the mover and the manager of the conference report. In all cases when the manager of the conference report is in favor of any motion, appeal, or amendment, the time in opposition shall be under the control of the minority leader or his designee.
(VII)
In any case in which there are amendments in disagreement, time on each amendment shall be limited to 30 minutes, to be equally divided between, and controlled by, the manager of the conference report and the minority leader or his designee. No amendment that is not germane to the provisions of such amendments shall be received.
(3)

Continuity of session of Congress
For the purpose of this subsection, continuity of a session of the Congress shall be considered as broken only by an adjournment of the Congress sine die.
III

Structural reforms
301.

Tribal Sovereignty
Section 2 of the National Labor Relations Act (29 U.S.C. 152) is amended—
(1)
in paragraph (2), by inserting “or any Indian tribe, or any enterprise or institution owned and operated by an Indian tribe and located on its Indian lands,” after “subdivision thereof,”; and
(2)
by adding at the end the following:
“(15)
The term Indian tribe means any Indian tribe, band, nation, pueblo, or other organized group or community which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
(16)
The term Indian means any individual who is a member of an Indian tribe.
(17)
The term Indian lands means—
(A)
all lands within the limits of any Indian reservation;
(B)
any lands title to which is either held in trust by the United States for the benefit of any Indian tribe or Indian or held by any Indian tribe or Indian subject to restriction by the United States against alienation; and
(C)
any lands in the State of Oklahoma that are within the boundaries of a former reservation (as defined by the Secretary of the Interior) of a Federally recognized Indian tribe.”.
302.

Labor organizations required to file Form T–1 Trust Annual Reports
Section 201 of the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. 431) is amended by adding at the end the following:
“(d)

Form T–1 Annual Trust Report
(1)

Definition of covered labor organization
In this subsection, the term covered labor organization means a labor organization whose total annual receipts equal or exceed $250,000.
(2)

Conditions
Each covered labor organization shall file an annual report containing the information described in paragraph (3) for each trust in which a labor organization is interested if the labor organization (alone or in combination with other labor organizations)—
(A)
has, at any time during or prior to the reporting period, selected or appointed the majority of the governing board of the trust in office at any time during the reporting period; or
(B)
contributes more than 50 percent of the receipts of the trust during the reporting period.
(3)

Report
A report required under paragraph (2) shall contain information pertaining to the financial operations of the labor organization and the trust, including any transactions or major receipts or disbursements by the trust during the reporting period.”.
IV

Additional reforms to existing labor rights and protections
401.

Notice of rights and protections; voter registration lists
Section 8 of the National Labor Relations Act (29 U.S.C. 158), as amended by section 202(e), is further amended by adding at the end the following:
“(k)
(1)
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 to employees under this Act, which shall include the right and process to rescind the authority of a labor organization under section 9(e), an explanation that any employee in a collective bargaining unit may be exempt from the activities of the labor organization, and that any fees collected by such labor organization may not be used for political activities, and with respect to a State or Territory in which membership in a labor organization may not be a condition of employment, an employee may opt out of any such fees, and with respect to a State or Territory in which such membership may be a condition of employment, such fees may only be used by the labor organization for collective bargaining and representational activities.
(2)
Whenever the Board directs an election under section 9(c) or approves an election agreement, the employer of employees in the bargaining unit shall, not later than two business days after the Board directs such election or approves such election agreement, provide a voter list to a labor organization that has petitioned to represent such employees. Such voter list shall include the names of all employees in the bargaining unit and not more than one additional form of personal contact information for the employee (such as a telephone number, an email address, or a mailing address) chosen by the employee in writing. The voter list shall be provided in a searchable electronic format generally approved by the Board unless the employer certifies that the employer does not possess the capacity to produce the list in the required form. Not later than nine months after the date of enactment of the Employee Rights Act, the Board shall promulgate regulations implementing the requirements of this paragraph.
(3)
It shall be an unfair labor practice for an employer to violate any requirement under this subsection.”.
402.

Labor organization use of personal information
Section 8(b) of the National Labor Relations Act (29 U.S.C. 158(b)) is amended—
(1)
in paragraph (6), by striking “; and” and inserting a semicolon;
(2)
in paragraph (7), by striking “8(b).” and inserting “8(b); and”; and
(3)
by adding at the end the following:
“(8)
to fail to protect the personal information of an employee received for an organizing drive, to use such information for any reason other than a representation proceeding, or to use such information after the conclusion of a representation proceeding.”.
403.

Notices for labor organization cards declaring purpose and disclosure of dues and fees
Section 8 of the National Labor Relations Act (29 U.S.C. 158), as amended by section 401, is further amended by adding at the end the following:
“(l)
(1)
Labor organization authorization cards shall be accompanied by a written notice—
(A)
specifying that such cards will be used to certify the labor organization as the exclusive bargaining representative of the employee; and
(B)
clarifying the rights of the employee and the total monthly dues and fees charged by the labor organization.
(2)
A card shall not be considered valid without the written notice required under paragraph (1).
(3)
Failure by a labor organization to comply with paragraph (1) shall constitute an unfair labor practice.”.