New Employee Rights Act Mandates Secret Union Ballots, Excludes Undocumented Workers, and Tightens Contractor Rules

This bill, officially called the Employee Rights Act, is taking a wrecking ball to several key areas of federal labor law—the stuff that governs how workers organize, who counts as an employee, and how companies are held accountable. The changes are sweeping, affecting everyone from the fast-food worker to the construction contractor.

The New Rules of Unionizing: Secret Ballots Only

First up, the bill completely changes how workers select a union representative. Right now, there are a few ways a union can be recognized, but Section 2 of this bill mandates that going forward, a representative must be chosen through a secret ballot election conducted directly by the National Labor Relations Board (NLRB). This means no more card checks or other methods of designation—it’s vote-or-nothing, run by the Feds. For workers who prefer a private vote, this is a clear win for democratic process. For unions, this makes organizing a longer, more structured, and often more difficult process.

On the data front (Section 4), if there’s an election, your employer must give the union a list of employees in the bargaining unit, along with one piece of contact information you choose in writing (email, phone, etc.). The good news is that the union is strictly limited on how they can use this data—only for the election itself—and they face penalties if they misuse or fail to protect your personal information. This is a solid privacy safeguard for employees during an often intense organizing period.

The Immigration Line: Who Gets to Vote?

Here’s a major pivot in Section 3 that will have a profound effect on millions of workers: the bill explicitly amends the National Labor Relations Act (NLRA) to state that any employee who does not have lawful immigration status shall not be eligible to vote in any NLRB election, and their vote will be invalid. Furthermore, they won’t be considered an “employee” for the purpose of filing a petition with the NLRB.

What does this mean in the real world? It effectively strips federal labor protections and the right to organize under the NLRA from undocumented workers. Previously, the NLRB generally protected the organizing rights of all workers, regardless of status. If this passes, these workers are left without the key federal mechanism for collective bargaining and protection from unfair labor practices. This could create a workplace environment where employers feel less constrained in dealing with workers suspected of being undocumented during union drives.

The Contractor Conundrum: Making It Harder to Be an Employee

If you’re a gig worker, a freelancer, or a small business owner, pay close attention to Section 5. This part tightens the definition of an “independent contractor” under the Fair Labor Standards Act (FLSA), which governs minimum wage and overtime. Under the new test, you are an independent contractor if the hiring company controls only the result of the work, not the details of how you do it, and you have the opportunity to act like a real business owner (taking risks, exercising business judgment). This is a much clearer, and arguably stricter, test than some previous interpretations.

The bill also makes it much harder to hold two companies responsible as a “joint employer.” For example, if you work at a franchised restaurant, the main brand (the franchisor) is only responsible for your working conditions if they have direct, actual, and immediate control over essential terms like hiring, firing, or setting your pay rates. Routine requirements—like safety standards, training manuals, or even policies on sexual harassment—won’t count toward establishing joint employer status. This is a massive win for franchisors and parent companies, as it significantly reduces their liability for labor issues at their local franchises or subsidiaries.

Where Your Union Dues Go and What Contracts Can’t Say

Section 4 also gives union members more control over their money. Unions would be barred from using dues, fees, or assessments for non-bargaining activities (like political advocacy or community organizing) unless the employee explicitly says yes in writing. This authorization expires after one year and doesn’t auto-renew. For workers who feel their union spends too much money on causes they don't support, this provides a powerful check.

Finally, Section 8 drops a bombshell into collective bargaining agreements: it bans any contractual provision that forces or encourages Diversity, Equity, or Inclusion (DEI) initiatives unless they are strictly tied to necessary job qualifications or already required by law. This means a union and an employer cannot agree to implement a specific DEI training program or hiring goal in their contract if it’s not directly related to performance standards. This provision could severely limit the ability of unions and employers to voluntarily address workplace equity issues through their contracts.

Overall, the Employee Rights Act introduces a highly structured, secret-ballot-only approach to union organizing while fundamentally altering who qualifies for federal labor rights, how businesses are held liable, and what can be negotiated in a contract.