By Jonathan K. Driggs, Attorney at Law
How much do you know about the National Labor Relations Board (NLRB)? Chances are most employers with non-unionized workforces are relatively unfamiliar with this federal agency. Well, that may be changing somewhat. The National Labor Relations Act (NLRA) is the law that protects employees’ right to unionize. The NLRB is the government agency that enforces the NLRA.
Now that we have our acronyms figured out, we need to figure out something else: the NLRA doesn’t just address union issues. The NLRA gives non-unionized employees many rights that go well beyond the right to unionize. One of these very important rights is the ability for employees to engage in “concerted activities” regarding their mutual aid or protection regarding terms or conditions of employment—and to not be retaliated against for having engaged in such activities.
For example, many employers still are not aware that the NLRA gives non-managerial employees the right to discuss wages. Do you have a policy in your handbook that prohibits employees from discussing their wages? Such a policy violates the NLRA. If an employee approaches you and says, “I’ve passed a petition around about my department regarding working too much overtime,” the employee may not be retaliated against for having done so.
However, what’s changed recently is the overall tone and posture of the NLRB itself. The Board consists of 5 members who are appointed by the President of the United States. One of the perks of being president is the ability to appoint a majority of the board members from one’s own political party. While there have always been swings in the position of the NLRB based upon who was president, this time the swing has been more pronounced.
Why? The reasons range from frustration at not being able to get certain pro-union bills passed in Congress (e.g., the Employee Free Choice Act) to union membership being at an all time historic low. Pro-union forces are feeling the pressure to increase their influence. As a result, the NLRB is really stepping out and making, at least in some instances, some very controversial decisions such as:
- Viewing many work-related statements made by employees on social media websites as “concerted activities” and heavily scrutinizing employer social media policies that restrict employee use of social media for work-related purposes. Examples of protected speech include an employee writing a statement on Facebook like: “My boss is the biggest jerk, he is awful to work for… hey fellow employees, ‘like’ this comment if you think our boss should be replaced!”
- Ruling that an employer’s policy banning any employee use of social media while on company time unlawfully restricted employees’ right to engage in concerted activities (wow!).
- Restricting employers’ ability to require employees to maintain the confidentiality of an internal investigation (per a recent NLRB decision, employers may only do so if there is a clear concern that information may be compromised, etc.)
- Requiring all employers to post a “Employee Rights Under the NLRA” poster (currently on hold due to court challenge).
- Passage of new “quickie election” rules that speed up the time frame for union representation elections (thus limiting the time employers have to respond).
To be sure, all of the NLRB’s recent decisions will be subject to court challenge, so it’s hard to know at this point where this will all end up. However, the NLRB is clearly stepping up its presence and influence over non-unionized workplaces and it’s time for employers to familiarize themselves with the ever-expanding rights of the NLRA.
This article should not be construed as legal advice. Copyright ©2012 by Jonathan K. Driggs, Attorney at Law, P.C. All rights reserved.
Jonathan K. Driggs is an employment law attorney with over 19 years of experience, including 3 years with the Utah Labor Commission. www.jkdlawpc.com
Jonathan’s popular “Employment Law for Managers Seminar” is being offered by the Salt Lake Community College’s “Custom Fit Program” at significantly discounted rates for “for-profit” employers (“Custom Fit Programs” are run by the state of Utah and use state funds to offset the cost of training programs for employers). The seminar will be held on Thursday, February 6, 2013 at the Miller Campus in Sandy. For details and registration contact: Shannon Strickland at SLCC Custom Fit at 801-957-5293.
For general information about the contents of Jonathan’s Employment Law for Managers Seminar, see: http://www.jkdlawpc.com/seminars/employment-law-for-managers-seminar/