The National Labor Relations Act’s (NLRA) substandard anti-retaliation provisions have cost workers billions of dollars in back pay and damages after being illegally fired for exercising their federally protected labor law rights, according to a new EPI report.
The report—authored by EPI senior fellow Lynn Rhinehart and director of government affairs Celine McNicholas—breaks down how the NLRA’s anti-retaliation protections and remedies are much weaker than anti-retaliation and whistleblower protections in other labor and employment laws. Even the Occupational Safety and Health (OSH) Act, which also has notoriously weak protections, provides better remedies for workers than does the NLRA. Under the NLRA’s meager protections:
- Employers face no monetary penalties for illegally retaliating against workers for exercising their NLRA rights, and workers do not receive compensatory damages when they are illegally fired.
- Workers can’t pursue their anti-retaliation cases on their own if they choose; they must depend on the National Labor Relations Board (NLRB), which is often slow or fails to act.
- Workers who are illegally fired don’t get their jobs back on an interim basis while their cases are pending, which means workers whose rights have been violated can be out of work and losing pay for months and years. If they do get reinstated, deductions are taken out of the back pay they receive.
The authors explain that the Protecting the Right to Organize (PRO) Act—pending in Congress—would provide more of a deterrent against lawbreaking by employers and make a real difference in the pocketbooks and lives of workers. For instance, under the PRO Act, workers facing illegal retaliation would have access to full back pay without deductions for the time out of work, and double the amount of workers’ back pay as liquidated damages, among other remedies.
“As we approach the 50th anniversary of the OSH Act, it is a cruel irony that the two laws most important to workers being able to join together to protect their health and safety on the job—the OSH Act and the NLRA—have the weakest anti-retaliation protections. The PRO Act would fix these structural shortcomings for workers exercising their organizing rights,” said Rhinehart.
“Under the NLRA, private-sector workers are supposed to be shielded from retaliation whether they are joining together to push for stronger safety protections, better pay, an end to harassment, or the formation of a union,” said McNicholas. “But in reality, this right is largely hollow because of fundamental and structural weaknesses in the NLRA that make it far weaker than other labor and employment laws with regard to anti-retaliation protections. Congress must pass the PRO Act to restore workers’ rights.”