Employee Rights Act Mandates Secret Union Ballots, Blocks Undocumented Workers from Voting, and Rewrites Independent Contractor Rules

The aptly named Employee Rights Act (ERA) is a massive overhaul of federal labor law, primarily targeting how unions organize, who gets counted as an employee, and who can vote in elections. If you care about workplace representation, your status as a contractor, or how your union dues are spent, this bill is a game-changer.

The Voting Booth Gets Tighter

Section 2 of the ERA mandates that all union representatives must be chosen via a secret ballot election run by the National Labor Relations Board (NLRB). This means methods like card check—where a union is recognized if a majority of workers sign authorization cards—are out. It’s secret ballot only, which proponents argue makes the process more democratic and less susceptible to employer or union coercion.

However, the bill immediately follows up with a major restriction in Section 3: employees without lawful immigration status are barred from voting in any NLRB-run election. Not only can they not vote, but they also won't be counted as employees when calculating the numbers needed to petition for an election. This provision effectively disenfranchises a significant portion of the workforce from participating in workplace democracy, even if they are paying taxes and contributing to the economy. This restriction also extends to internal union elections run under the Labor-Management Reporting and Disclosure Act.

Your Dues, Your Rules: The Dues Check-Up

If you're in a union, Section 4 introduces a massive change to how your dues can be spent. Currently, unions often use a portion of dues for activities beyond direct collective bargaining, such as political advocacy, community organizing, or general lobbying. Under the ERA, union dues, fees, or assessments can only be used for activities directly related to collective bargaining or contract management for your specific unit.

If the union wants to spend your money on anything else—like political activities—they must get your written permission first. This authorization automatically expires after one year and cannot be automatically renewed. For the average worker, this means gaining much tighter control over where their money goes, but it also creates a substantial administrative hurdle for unions trying to fund broader advocacy efforts.

Rewriting the Employment Rulebook: Contractor vs. Employee

Sections 5 is where the bill hits the gig economy and the franchise model hard. The ERA fundamentally changes the definition of an independent contractor under the Fair Labor Standards Act (FLSA) and the NLRA. Under the new standard, someone is a contractor if the hiring party only controls the final result of the work, not the details of how the work gets done. Crucially, the worker must also have the opportunity for entrepreneurial decisions, carrying the risks and rewards of running a business.

This shift is huge. For example, if you’re a software developer or a truck driver, your employer can still set deadlines, require you to follow safety regulations, and even mandate certain insurance, and you could still be classified as a contractor—losing out on minimum wage, overtime, and collective bargaining rights. This change makes it much easier for companies to classify workers as contractors, which is a big win for businesses relying on flexible labor models, but potentially a loss of basic protections for workers.

Section 5 also tightens the “joint employer” standard. For a company (like a franchisor) to be considered a joint employer of another company's workers (like a franchisee's staff), they must exercise direct, actual, and immediate control over essential employment terms like hiring, firing, or setting pay. This change effectively shields franchisors from liability for labor violations at their local franchise locations, even if the franchisor dictates operational standards. This means if your local fast-food franchise owner violates labor laws, it will be much harder to hold the corporate parent accountable.

Individual Bargaining and Banning DEI

Two other sections warrant a close look. Section 7 introduces the concept of “independent negotiating” in any state that already bans mandatory union membership or fees (often called “right-to-work” states). If you’re in one of these “covered states” and you leave the union, you now have the right to negotiate your own terms directly with your employer, even if the rest of your coworkers are covered by a union contract. This could severely weaken the union's power by allowing employers to negotiate separate, potentially better or worse, deals with individual employees, undermining the principle of exclusive representation.

Finally, Section 8 makes it an unfair labor practice for unions to include clauses in contracts that mandate or promote Diversity, Equity, or Inclusion (DEI) initiatives based on personal characteristics, unless that initiative is already required by federal, state, or local law. This means unions can no longer bargain for things like specific hiring goals or equity programs focused on protected classes, limiting a key tool for promoting workplace equity through collective bargaining.