As we have discussed previously (here, here, here and here), Congressional Democrats have been attempting to amend the National Labor Relations Act (“NLRA”) for the last few years.  However, attempts to invoke sweeping changes to a number of areas of the NLRA through the Protect the Right to Organize Act (“PRO Act”) have stalled in Congress.

The most recent proposed amendment to the NLRA as part of the Build Back Better Act (“BBB Act”) would impose civil penalties on an employer who commits an unfair labor practice, including potential individual liability to officers or directors.  The proposed fines in the BBB Act are up to $50,000 per violation, or up to $100,000, for willful violators or if there is “serious economic harm” to an employee. 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 (e.g., backpay) and/or by equitable means (e.g., reinstatement of a bargaining unit member who was improperly terminated).

As we discussed here, the House passed the BBB Act on November 19, 2021.  While the BBB Act still faces significant hurdles in the Senate, on December 11, 2021, the Senate Health, Education, Labor and Pensions Committee approved text of the BBB Act containing the same NLRA civil-penalties language that was contained in the House bill.

A version of the BBB Act–which includes a number of other tax and spending measures having nothing to do with the NLRA–is expected to go to a vote before the entire Senate in the coming weeks.

We will be sure to keep you updated with developments.

 

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Photo of Joshua Fox Joshua Fox

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several…

Joshua S. Fox is a senior counsel in the Labor & Employment Law Department and a member of the Sports, Labor-Management Relations, Class and Collective Actions and Wage and Hour Groups.

As a member of the Sports Law Group, Josh has represented several Major League Baseball Clubs in all aspects of the salary arbitration process, including the Miami Marlins, Boston Red Sox, Los Angeles Dodgers, Kansas City Royals, San Francisco Giants, Tampa Bay Rays and Toronto Blue Jays. In particular, Josh successfully represented the Miami Marlins in their case against All-Star Catcher J.T. Realmuto, which was a significant club victory in salary arbitration. Josh also represents Major League Baseball and its clubs in ongoing litigation brought by current and former minor league players who allege minimum wage and overtime violations. Josh participated on the team that successfully defended Major League Baseball in a wage-and-hour lawsuit brought by a former volunteer for the 2013 All-Star FanFest, who alleged minimum wage violations under federal and state law. The lawsuit was dismissed by the federal district court, and was affirmed by the U.S. Court of Appeals for the Second Circuit.

Josh also has extensive experience representing professional sports leagues and teams in grievance arbitration proceedings, including playing a vital role in all aspects of the grievance challenging the suspension for use of performance-enhancing drugs of then-New York Yankees third baseman Alex Rodriguez. Josh also has counseled NHL Clubs and served on the trial teams for grievances alleging violations of the collective bargaining agreement, including cases involving use of performance-enhancing substances, domestic violence issues, and supplementary discipline for on-ice conduct. He has played a key role in representing professional sports leagues in all aspects of their collective bargaining negotiations with players and officials, including the Major League Baseball, National Hockey League, the National Football League, Major League Soccer, the Professional Referee Organization, and the National Basketball Association,.

In addition, Josh has extensive experience representing clients in the performing arts industry, including the New York City Ballet, New York City Opera, Big Apple Circus, among many others, in collective bargaining negotiations with performers and musicians, the administration of their collective bargaining agreements, and in grievance arbitrations.

Josh also represents a diverse range of clients, including real estate developers and contractors, pipe line contractors, hospitals, hotels, manufacturers and public employers, in collective bargaining, counseling on general employment matters and proceedings before the National Labor Relations Board, New York State Public Employment Relations Board and arbitrators.

Josh has also recently served as an adjunct professor at Cornell University’s School of Industrial Labor Relations for the past two years, teaching a course regarding Major League Baseball salary arbitration.

Prior to joining Proskauer, Josh worked for a year and a half at the National Hockey League, where he was involved in all labor and employment matters, including preparations for collective bargaining, grievance arbitration, contract drafting and reviewing and employment counseling. Josh also interned in the labor relations department of Major League Baseball and at Region 2 of the National Labor Relations Board. He was a member of the Brooklyn Law Review and the Appellate Moot Court Honor Society and served as president of the Brooklyn Entertainment and Sports Law Society.