The National Labor Relations Board (NLRB), the agency that enforces a federal labor law that protects the rights of employees and employers—is currently reviewing several hot topics that may have a significant impact on the workplace.
The board enforces the National Labor Relations Act (NLRA), a federal law that not only grants employees the right to form or join unions but also to "engage in protected, concerted activities to address or improve working conditions or refrain from engaging in these activities."
All employees in the private sector are covered under the NLRA. However, the law does not cover supervisors (with limited exceptions).
Further, legal protection does not depend on the type of work an employee does. Professionals, for example, may be considered employees and be covered under the law if they are not part of management. Temporary workers may also be protected by the labor law.
This means that nonsupervisory employees have the right to act together to improve wages and other terms and conditions of employment and to communicate among themselves and with others to do so.
The NLRA applies to all private-sector workplaces (with few exceptions) even if they are not unionized. Should HR professionals care?
"I don't think that an HR manager at the typical employer fully understands the impact of the national labor law until its too late," says John Sarno, president of the Employers Association of New Jersey.
The NLRA makes it an "unfair labor practice" (ULP) for an employer to "interfere with, restrain, or coerce employees" attempting to exercise or exercising those rights.
This means that employees cannot be disciplined or fired for exercising their legal rights.
A few examples of protected legal activities are:
- 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.
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.
While the NLRA has been around for decades, what has changed is the NLRB's enforcement of these provisions. Recently, many nonunion employers have been charged with unfair labor practices as the result of more-aggressive enforcement of the NLRA in nonunion workplaces.
Through its "protected concerted activity initiative," the NLRB has applied the law to a variety of policies and procedures common in the workplace, which have previously been unchallenged.
For example, the NLRB has found that a social media policy prohibiting employees from electronically posting statements that “damage” or “defame” the company violates the NLRA, because the language of the policy is so broad that an employee would reasonably construe the policy as prohibiting protected activity (such as complaining about working conditions on social networking sites).
In February, 2023 the NLRB prohibited two common features of severance agreements. Employers can no longer require laid-off workers to keep their terms of severance secret, and they can’t compel severance recipients to refrain from publicly criticizing the company.
To respect workers rights, employers need to understand what they are and what kinds of actions can violate them, says Sarno.
"I think that its probably a good time for HR managers to begin brushing up on the law," he adds.
For more information on the NLRA, contact EANJ here: https://www.eanj.org/contact-us