Employers of non-unionized workforces are sometimes unaware that federal labor relations laws may apply to their employees. For example, the National Labor Relations Act (“NLRA”) applies to both union-represented and non-union-represented workers, providing them with substantial protections for workplace advocacy and organizing activities. It is important for all employers to have an understanding of these employee protections.
The NLRA is a federal law that regulates labor relations for most private sector employers. The NLRA’s definition of “employee” broadly includes “any employee” without limiting coverage to just unionized workers. However, certain categories of workers are excluded from NLRA coverage, including public sector employees (employees of state, federal and local governments and their sub-divisions), agricultural laborers, domestic workers, supervisors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and independent contractors.
The National Labor Relations Board (“NLRB”) is the federal government agency responsible for enforcing the NLRA. Alleged violations of the NLRA can be filed with the NLRB in the form of unfair labor practices charges, which are investigated by the NLRB.
Section 7 of the NLRA protects the rights of employees to self-organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from such activities. These are commonly referred to as Section 7 rights.
Employees can engage in protected concerted activity when they act individually or collectively to address workplace concerns that benefit other employees or seek to induce group action. Additionally, the NLRA protects these rights by prohibiting employer interference, discrimination, and retaliation.
So What Does This Mean for Employers?
The NLRA’s application to non-union workplaces creates significant compliance obligations for employers. Below are a few key strategies for avoiding NLRA violations:
- Before disciplining or discharging an employee, evaluate whether the employee’s conduct at issue could constitute protected concerted activity under the NLRA, and should therefore not result in discipline or discharge. For example, was the employee’s conduct at issue a complaint about working conditions made on social media? Such conduct can be protected concerted activity even when the employee included profanity and criticism of management in the social media post. If you are unsure whether the employee conduct might be considered protected concerted activity, consult your labor relations counsel prior to issuing any discipline.
- Periodically review your employee handbook provisions and employment policies to ensure they do not contain language that has a reasonable tendency to chill employees from engaging in protected concerted activities such as discussing wages, benefits, and workplace safety issues. For example, non-solicitation and non-distribution policies can be overbroad and unlawful if they apply during non-work time and in non-work areas. Employee handbook and policy language should be narrowly tailored to specific, legitimate business needs.
- Enforce workplace policies consistently. If you allow employees to post notices about fundraisers and local events on the break room bulletin board, you cannot prohibit them from including union meeting notices.
Additionally, it is important for employers to be aware of the common unfair labor practice pitfalls that can occur during union organizing campaigns. The following actions may result in charges of unfair labor practices against employers and must be avoided:
- Threats of reprisal if the employees vote for a union or engage in protected concerted activities. A classic example is threatening to close the plant if employees vote in favor of union representation.
- Promises of benefits to employees to defeat union organizing efforts or discourage union support.
- Interrogating or questioning employees about their union activities or sympathies.
- Surveillance or creating an impression of surveillance regarding employees’ union activities.
- Transferring, laying off, terminating, assigning employees more difficult work tasks or otherwise punishing employees because they engaged in protected concerted activities.
