Other issues concerning workers’ organizing and bargaining rights
| Issue | Trump board | Biden board |
|---|---|---|
| Scope of protected activity | Narrowed the scope of protected activity (meaning that workers can face discipline, including being fired, for the activity) | Restored a broader definition of protected concerted activity |
| Organizing/bargaining rights for student workers | Proposed a rule to strip student workers of their organizing and bargaining rights | After President Biden made Lauren McFerran Chair of the NLRB, the board withdrew the proposed rule and left legal precedent in place that says student workers have organizing and bargaining rights. Almost 44,000 student workers have won unions in NLRB elections since 2022. None of these elections would have been allowed under the Trump NLRB’s proposed rule |
| Misclassification of workers as independent contractors | Changed the legal test to allow more workers to be (mis)classified as independent contractors | Restored the prior, more protective test for determining independent contractor status |
| Unfair labor practices that undermine the representation process | Issued Cemex decision to prevent employer unfair labor practices that undermine the representation process | |
| Voluntary recognition by employers | Issued a rule undermining voluntary recognition; issued complaints alleging voluntary recognition agreements were illegal. | Issued a proposal to withdraw Trump board rules undermining voluntary recognition, but the rules have not yet been finalized, meaning that the Trump rules remain in effect |
| Dues checkoff during bargaining | Allowed employers to cease dues checkoff at the expiration of collective bargaining agreement | Restored pre-Trump NLRB rule that dues checkoff continues during bargaining for a successor contract (unless employer can prove that there is an impasse in bargaining) |
| Relief for workers harmed by employer violations | Issued decision that made clear that board will consider awarding monetary relief for direct or foreseeable harms such as medical bills and rent payments, if proven by the general counsel. | |
| Employer-issued rules and handbooks that chill collective action | Allowed employers to adopt rules and policies that potentially chill worker organizing and collective action | Employer-issued rules that potentially chill collective action are presumptively unlawful, and employers must justify their need and scope. |
Source: EPI analysis of the National Labor Relations Board’s rulemakings and board decisions.