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Feb 01, 2012

What Every Employer Needs to Know About the NLRA

By: Paul Ebeltoft

Even casual students of labor history know that the National Labor Relation Act (NLRA) was the product of a toxic mix of the Great Depression-era’s high unemployment and a strongly-pro-business Supreme Court. Reacting to the 99 percenters of the 1930’s, Congress enacted the NLRA. Its provisions give most private-sector employees the right to organize; requires employers to meet with accredited representatives of their employees; requires employers and employees to make an honest effort to reach agreement on wages, hours and other conditions of employment; and authorizes work-stoppages if agreements are not reached or are breached. The National Labor Relations Board (NLRB) enforces the provisions of the NLRA.

My company’s not union. Why should I care?

What few people understand is that non-union employees also have rights under the NLRA. Specifically, the NLRB protects the rights of employees to engage in “protected concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

The NLRB website gives some examples of protected concerted activities that do not require unionization in order to gain the NLRB’s interest and potential protection:

• Two or more employees addressing their employer about improving their pay.
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
• An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

My company is small. Do I have to worry?

The short answer is, “Yes.” The NLRB website makes it clear that most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are:

• employed by Federal, state, or local government;
• employed as agricultural laborers;
• employed in the domestic service of any person or family in a home;
• employed by a parent or spouse;
• employed as an independent contractor;
• employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered);
• employed by an employer subject to the Railway Labor Act, such as railroads and airlines; and
• employed by any other person who is not an employer as defined in the NLRA.

What do I have to worry about?

You have no doubt heard about companies firing employees for posting negative comments about the company on various social media outlets. Have you wondered whether your company could do so? Have you developed a social media policy for your workplace?

If the answer to either of those questions is “yes,” you need to know about what the NLRB is doing to protect the “concerted action” of posting information about your company on Facebook and elsewhere. The NLRB has issued guidance about social media policies and actions your company can take if you learn that your employees are dissing your company. There will be more about what you can and cannot do in future articles.

For now, rest assured that the regulatory underbrush will thicken. On January 25, 2012, the NLRB released its second report describing social media cases reviewed by the NLRB’s Office of the General Counsel. Note this less-than-comforting remark: “Given the new and evolving nature of social media cases, the Acting General Counsel has asked all regional offices to send cases which the Regions believe to be meritorious to the agency’s Division of Advice in Washington D.C., in the interest of tracking them and devising a consistent approach.”

Reprinted with permission from an article submitted for publication in the February, 2012 Southwest Area Human Resource Association newsletter.