On Nov. 19, 2021, the House passed a version of the Build Back Better Act that would vastly expand employer liability under the National Labor Relations Act (NLRA). The bill adds aggressive “civil penalties,” on top of the traditional National Labor Relations Board (NLRB) remedies of backpay and reinstatement, for certain violations of the NLRA by employers. Employers found to be in violation of the NLRA are subject to a fine up to $50,000. However, for certain repeat violations resulting in the discharge or “serious economic harm” to an employee, the fine can be up to $100,000. Additionally, any officer or director who “directed or committed the violation,” established the policy leading to the violation, or had knowledge but did not act to prevent the violation may be personally liable, an unprecedented remedy under the NLRA. Likewise, the bill bans employer actions long held lawful under the NLRA, including, without limitation, the permanent replacement of economic strikers, employer lockouts, and entering into agreements not to engage in collective action or requiring employees to enter into such agreements. The bill was sent to the Senate for review and a vote. Proponents hope it will meet the standards for a budget reconciliation bill and, thus, avoid a filibuster.

Effective Nov. 5, 2021, the NLRB Division of Operations Management issued Memorandum OM 22-03, outlining parties’ bargaining obligations under the U.S. Department of Labor’s COVID-19 Emergency...