Demand Progress Education Fund Affirms Right to Unionize by Congressional Staff in New Analysis of House Rules that Sought to End Unionization

Unions in the House of Representatives in the 118th Congress,” a new report released today by the Demand Progress Education Fund, analyzes how the new House Rules aimed at rolling back the rights of House staff to unionize fall short of achieving that purpose. Its analysis shows House staff can assert their rights to organize unions in the 118th Congress. The report was written by Kevin Mulshine, former Senior Advisor and Counsel on the first staff of the Office of Compliance/Office of Congressional Workplace Rights.

The report explains in detail the employee protections under the Congressional Accountability Act — a Gingrich-era congressional workplace law that allowed Legislative branch staff to unionize — and how that law applies today. House political and non-political staff earned the right to unionize last year with the passage of H.Res.1096

“House staff can assert their rights to organize unions in the 118th Congress,” said Kevin Mulshine, special advisor to Demand Progress Education Fund and author of the report. “Contrary to what the House Rules may have intended to proscribe, staffers who want to exercise their rights to collectively organize should have little fear of a loss of legal protections for their actions.”

The report lays out several reasons why the vaguely worded provision in the House Rules for the 118th Congress aimed at undoing H.Res.1096 cannot nullify current nor stop new unions from forming in the House, namely:

  1. The House did not follow the process set out in the Congressional Accountability Act to amend or suspend Office of Congressional Workplace Rights (OCWR) regulations.
  2. The House may not unilaterally suspend the properly implemented regulations of the OCWR, an independent office of the Legislative branch.
  3. The Congressional Accountability Act was passed as a waiver of sovereign immunity, a concept that holds that the government cannot be sued except if a law clearly and expressly allows such a lawsuit. For the House to extinguish the rights granted to federal employees in its employ, the House must do so with clear and unequivocal language. The wording of the separate order in the House Rule about “Restoring Legislative Branch Accountability” leaves the reader guessing as to its goal. It is necessary that such a provision be clear and unequivocal, but H.Res. 5 spectacularly fails to do so.
  4. To end the right of House staff to unionize, the House Rules package separate order would have had to comprehensively address this other body of regulations and nullify them as applied to the House. The House Rule fails in this regard.

Since the OCWR instituted House unionization regulations in July of 2022, seven offices have formed unions and seven more are in the process. The House Rule has not caused the OCWR to change its case-handling processes. Based on testimony at a recent Leg branch appropriations hearing, the OCWR apparently is carrying on as normal regarding union representation matters. 

Meanwhile, the Senate has yet to adopt a similar resolution extending these labor rights, which gives Senate staff little recourse to address the pay disparity recently revealed that shows both parties pay their non-white Senate staffers thousands of dollars less per year. Demand Progress extols Senator Markey’s office for recently taking the unprecedented step of seeking voluntary recognition of their effort to unionize. Unfortunately, until the Senate approves unionization, they are not protected like their counterparts in the House. 

Likewise, joint congressional staff (like those at OCWR) also do not yet have these rights, but other Legislative branch federal employees — including those at the Architect of the Capitol, Library of Congress, and Capitol Police — have enjoyed these rights for decades.

For the past several years, Demand Progress has made the case for improved congressional staff pay and working conditions, promoted the idea of passing a resolution to extend the Congressional Accountability Act, and led a broad coalition urging House leaders to extend union rights to staff. 

Low pay, sub-par benefits, and toxic workplace conditions in Congress came to the fore when a staff exodus hit a 20-year high in 2021, combined with the amplification of the plight of staffers by the Dear White Staffers Instagram account, put public pressure on Congress to act. Both chambers enacted a pay floor increase, and the House heeded the recommendations of a coalition led by Demand Progress and the Lincoln Network to increase Member Representation Allowances (MRA) by 26% to better attract and retain staff. These funds cover House members’ office expenses including staff salaries. 

And yet, according to a new Legistorm study, nearly two out of five offices didn’t use a single dollar of that increase, underscoring the need for congressional staff to be able to negotiate for better pay through certified union representatives and without fear of retaliation.