II 118TH CONGRESS 1ST SESSION S. 1201 To reform the labor laws of the United States, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 19, 2023 Mr. SCOTT of South Carolina (for himself, Mr. CRAMER, Mr. CASSIDY, Ms. LUMMIS, Mr. BRAUN, Mr. JOHNSON, Mr. THUNE, Mrs. HYDE-SMITH, Mr. HAGERTY, Mr. BUDD, Mr. TUBERVILLE, Mr. CRAPO, Mr. RISCH, Mr. LEE, Mr. BARRASSO, and Mr. CORNYN) introduced the following bill; which was read twice and referred to the Committee on Health, Edu- cation, Labor, and Pensions A BILL To reform the labor laws of the United States, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Employee Rights Act’’. 4 SEC. 2. ENHANCED EMPLOYEE RIGHTS. 5 Section 9(a) of the National Labor Relations Act (29 6 U.S.C. 159(a)) is amended by striking ‘‘designated or se- 7 lected for the purposes of collective bargaining’’ and in- 8 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1201 IS serting ‘‘for the purposes of collective bargaining selected 1 by secret ballot, in an election conducted by the Board,’’. 2 SEC. 3. EMPLOYEE PRIVACY. 3 (a) NOTICE OF RIGHTS AND PROTECTIONS; VOTER 4 REGISTRATION LISTS.—Section 8 of the National Labor 5 Relations Act (29 U.S.C. 158) is amended by adding at 6 the end the following: 7 ‘‘(h)(1) Whenever the Board directs an election under 8 section 9(c) or approves an election agreement, the em- 9 ployer of employees in the bargaining unit shall, not later 10 than two business days after the Board directs such elec- 11 tion or approves such election agreement, provide a voter 12 list to a labor organization that has petitioned to represent 13 such employees. Such voter list shall include the names 14 of all employees in the bargaining unit and not more than 15 one additional form of personal contact information for 16 the employee (such as a telephone number, an email ad- 17 dress, or a mailing address) chosen by the employee in 18 writing. The voter list shall be provided in a searchable 19 electronic format generally approved by the Board unless 20 the employer certifies that the employer does not possess 21 the capacity to produce the list in the required form. Not 22 later than nine months after the date of enactment of the 23 Employee Rights Act, the Board shall promulgate regula- 24 tions implementing the requirements of this paragraph. 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1201 IS ‘‘(2) It shall be an unfair labor practice for an em- 1 ployer to violate any requirement under paragraph (1).’’. 2 (b) LABOR ORGANIZATION USE OF PERSONAL IN- 3 FORMATION.—Section 8(b) of the National Labor Rela- 4 tions Act (29 U.S.C. 158(b)) is amended— 5 (1) in paragraph (6), by striking ‘‘; and’’ and 6 inserting a semicolon; 7 (2) in paragraph (7), by striking ‘‘8(b).’’ and 8 inserting ‘‘8(b); and’’; and 9 (3) by adding at the end the following: 10 ‘‘(8) to fail to protect the personal information 11 of an employee received for an organizing drive, to 12 use such information for any reason other than a 13 representation proceeding, or to use such informa- 14 tion after the conclusion of a representation pro- 15 ceeding.’’. 16 (c) RIGHT NOT TO SUBSIDIZE LABOR ORGANIZA- 17 TION NONREPRESENTATIONAL ACTIVITIES.—Title I of 18 the Labor-Management Reporting and Disclosure Act of 19 1959 (29 U.S.C. 411 et seq.) is amended by adding at 20 the end the following: 21 ‘‘SEC. 106. RIGHT NOT TO SUBSIDIZE LABOR ORGANIZA- 22 TION NONREPRESENTATIONAL ACTIVITIES. 23 ‘‘No employee’s labor organization dues, fees, assess- 24 ments, or other contributions shall be used or contributed 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1201 IS to any person, organization, or entity for any purpose not 1 directly related to the labor organization’s collective bar- 2 gaining or contract administration functions on behalf of 3 the represented unit employee unless the employee mem- 4 ber, or nonmember required to make such payments as 5 a condition of employment, authorizes such expenditure in 6 writing, after a notice period of not less than 35 days. 7 An initial authorization provided by an employee under 8 the preceding sentence shall expire not later than 1 year 9 after the date on which such authorization is signed by 10 the employee. There shall be no automatic renewal of an 11 authorization under this section.’’. 12 SEC. 4. EMPLOYMENT RELATIONSHIPS. 13 (a) AMENDMENTS TO THE FAIR LABOR STANDARDS 14 ACT OF 1938 TO HARMONIZE THE DEFINITION OF EM- 15 PLOYEE.— 16 (1) DEFINITION OF EMPLOYEE.—Section 17 3(e)(1) of the Fair Labor Standards Act of 1938 18 (29 U.S.C. 203(e)(1)) is amended by inserting be- 19 fore the period the following: ‘‘, as determined under 20 the usual common law rules’’. 21 (2) DEFINITION OF EMPLOY.—Section 3(g) of 22 the Fair Labor Standards Act of 1938 (29 U.S.C. 23 203(g)) is amended by inserting ‘‘an employee’’ after 24 ‘‘permit’’. 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1201 IS (b) CLARIFICATION OF JOINT EMPLOYMENT.— 1 (1) NATIONAL LABOR RELATIONS ACT.—Sec- 2 tion 2(2) of the National Labor Relations Act (29 3 U.S.C. 152(2)) is amended— 4 (A) by striking ‘‘The term ‘employer’ ’’ and 5 inserting ‘‘(A) The term ‘employer’ ’’; and 6 (B) by adding at the end the following: 7 ‘‘(B) An employer may be considered a 8 joint employer of the employees of another em- 9 ployer only if each employer directly, actually, 10 and immediately, and not in a limited and rou- 11 tine manner, exercises significant control over 12 the essential terms and conditions of employ- 13 ment of the employees of the other employer, 14 such as hiring such employees, discharging such 15 employees, determining the rate of pay and ben- 16 efits of such employees, supervising such em- 17 ployees on a day-to-day basis, assigning such 18 employees a work schedule, position, or task, or 19 disciplining such employees.’’. 20 (2) FAIR LABOR STANDARDS ACT OF 1938.— 21 Section 3(d) of the Fair Labor Standards Act of 22 1938 (29 U.S.C. 203(d)) is amended— 23 (A) by striking ‘‘ ‘Employer’ includes’’ and 24 inserting ‘‘(1) ‘Employer’ includes’’; and 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1201 IS (B) by adding at the end the following: 1 ‘‘(2) An employer may be considered a joint 2 employer of the employees of another employer for 3 purposes of this Act only if each employer meets the 4 criteria set forth in section 2(2)(B) of the National 5 Labor Relations Act (29 U.S.C. 152(2)(B)) except 6 that, for purposes of determining joint-employer sta- 7 tus under this Act, the terms ‘employee’ and ‘em- 8 ployer’ referenced in such section shall have the 9 meanings given such terms in this section.’’. 10 (c) PROVISION OF TECHNICAL ASSISTANCE.—Not- 11 withstanding any other provision of law, under the Fair 12 Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), 13 the National Labor Relations Act (29 U.S.C. 151 et seq.), 14 or any other Federal law, none of the following may be 15 construed, alone or in combination with any other factor, 16 as establishing an employer and employee relationship be- 17 tween a franchisor (or any employee of the franchisor) and 18 a franchisee (or any employee of the franchisee): 19 (1) The franchisor (or any employee of the 20 franchisor) provides the franchisee (or any employee 21 of the franchisee) with, or requires such franchisee 22 (or any employee of the franchisee) to use, a hand- 23 book, or other training, on sexual harassment, 24 human trafficking, workplace violence, discrimina- 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1201 IS tion, or opportunities for apprenticeships or scholar- 1 ships. 2 (2) The franchisor (or any employee of the 3 franchisor) requires the franchisee (or any employee 4 of the franchisee) to adopt a policy on sexual harass- 5 ment, human trafficking, workplace violence, dis- 6 crimination, opportunities for apprenticeships or 7 scholarships, child care, or paid leave, including a 8 requirement for such franchisee (or any employee of 9 the franchisee) to report to the franchisor (or any 10 employee of the franchisor) any violations or sus- 11 pected violations of such policy. 12 SEC. 5. TRIBAL SOVEREIGNTY. 13 Section 2 of the National Labor Relations Act (29 14 U.S.C. 152), as amended by section 4(b)(1), is further 15 amended— 16 (1) in paragraph (2)(A), by inserting ‘‘or any 17 Indian Tribe, or any enterprise or institution owned 18 and operated by an Indian Tribe and located on its 19 Indian lands,’’ after ‘‘subdivision thereof,’’; and 20 (2) by adding at the end the following: 21 ‘‘(15) The term ‘Indian Tribe’ means any In- 22 dian Tribe, band, nation, pueblo, or other organized 23 group or community which is recognized as eligible 24 for the special programs and services provided by 25 VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1201 IS the United States to Indians because of their status 1 as Indians. 2 ‘‘(16) The term ‘Indian’ means any individual 3 who is a member of an Indian Tribe. 4 ‘‘(17) The term ‘Indian lands’ means— 5 ‘‘(A) all lands within the limits of any In- 6 dian reservation; 7 ‘‘(B) any lands title to which is either held 8 in trust by the United States for the benefit of 9 any Indian Tribe or Indian or held by any In- 10 dian Tribe or Indian subject to restriction by 11 the United States against alienation; and 12 ‘‘(C) any lands in the State of Oklahoma 13 that are within the boundaries of a former res- 14 ervation (as defined by the Secretary of the In- 15 terior) of a federally recognized Indian Tribe.’’. 16 Æ VerDate Sep 11 2014 22:40 Apr 21, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S1201.IS S1201 kjohnson on DSK79L0C42PROD with BILLS