It is a common misconception that the National Labor Relations Act (“NLRA”) does not apply to businesses that lack union involvement. In fact, an employee does not have to be in a union to be protected by the NLRA; employees at union and non-union workplaces have the right to share information amongst the workforce and seek to improve their working conditions.  Specifically, the NLRA provides employees with the right to form or join unions and engage in protected, concerted activities to address and improve working conditions.  A “protected concerted activity” is an endeavor that involves two or more employees taking action for the mutual aid or protection of a group regarding the terms and conditions of their employment.  For example, if two employees communicate on Facebook regarding their assigned wages, they are engaged in a "protected, concerted activity."  An employees’ activities are not “concerted,” however, if the action is undertaken solely by the employee and are only on his own behalf.

For those employers unfamiliar with the NLRA and its application to their non-union workplace, consider the below Q & A.  For additional information or questions on your responsibilities as an employer under the NLRA, contact our office.

I’m confused – what rights, specifically, does the NLRA grant to private sector employees?

Confusion is understandable.  As discussed above, most employers associate the NLRA with collective bargaining rights and union representation in the workplace. However, the Act also protects employees’, union and non-union, rights to make certain work-related complaints. Specifically, Section 7 of the NLRA grants “[e]mployees . . . the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 8(a)(1) of the NLRA then forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”  In sum, an employer may not infringe upon an employee’s rights to discuss or improve the terms and conditions of their employment.

Is all “protected, concerted activity” protected, no matter the context?

No - not all employee conduct, even if concerted, is protected. According to the General Counsel for the NLRB, personal attacks on managers and postings solely on clients or customers, that do not reference the employer, are not protected concerted activity.  For instance, in Caterpillar Tractor, 276 NLRB 1323 (1985), the NLRB held that a vulgar cartoon which involved a supervisor, depicted as a razorback, urinating on lower level employees, was created to disparage the supervisor, and not to improve employee working conditions.

What happens if I terminate an employee who engages in a "protected concerted activity"?

Expect to be contacted by the National Labor Relations Board (“NLRB”), the agency charged with enforcing the NLRA, should the terminated employee file a Unfair Labor Practice complaint with the agency.  The NLRB operates to restore employment to individuals terminated or penalized by their employer in violation of the NLRA.

Employees or former employees file approximately 20,000 to 30,000 NLRA charges each year.  After a charge is filed, an NLRB agent investigates the alleged unfair labor practice by gathering evidence and requesting affidavits from the involved parties and other witnesses.  The NLRB then makes a finding as to whether the employer is in violation of the NLRA.  The Regional Director of the NLRB, who has the authority to dismiss the Charge or issue a Complaint and Notice of Hearing, reviews the board agent’s findings.  In rare cases, the Regional Director may request a court to put an end to the offending acts via a temporary restraining order. The investigation and decision process takes between seven to twelve weeks, with a majority of the charges being settled, withdrawn, or dismissed by the Regional Director.

What happens if a Complaint is issued against my business?

If a Complaint is issued, you have ten days to file an Answer.  Then, the matter is sent to an Administrative Law Judge for a hearing.  The Administrative Law Judge hears arguments from both parties and either recommends that the employer cease and desist the unfair labor practice or dismisses the Complaint.  The Administrative Law Judge may also order remedies such as reinstatement or backpay if the employee was discharged unlawfully.  An employer has the ability to challenge any negative decision against it by the Administrative Law Judge by appealing to the proper state court.  If no timely challenge is made to the Administrative Law Judge’s decision, the decision is final.

What should I do to ensure compliance with the NLRA?I typically advise employers to do three things:

• Talk to an attorney and obtain a clear understanding of your employees’ rights and your own responsibilities under the NLRA. Only with education and proper training can you ensure that your business fully complies with federal requirements.

• Examine your Employee Handbook and other policies.  Are your policies drafted in such a way as to avoid infringing upon employee rights under the NLRA? The NLRB has becomes increasingly active in pursuing employers who broadly prohibit their employees from making statements that “damage or disrespect the Company,” etc.

• Think before taking adverse action against an employee based on his or her behavior on social media. Remember - it is unlawful to terminate or discipline an employee who engages in protect concerted activity, even if that activity only occurs on social media. For instance, in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012), the NLRB examined a situation in which five employees were terminated based upon a Facebook conversation.  The communication began when one of the employees posted the following comment: “Lydia Cruz, a coworker, feels that we don’t help our clients enough at [Employer]. I about had it! My fellow coworkers, how do u feel.”  Four employees responding to this post, giving their own, less than favorable opinions on poor Ms. Cruz. The employer terminated these individuals for “bullying and harassing” their coworker.  Thereafter, the terminated employees lodged a complaint with the NLRB, which determined that the termination was unlawful.  According to the NLRB, the employees engaged in “protected concerted activity” when they discussed Ms. Cruz's job performance issues on Facebook in preparation for lodging an official complaint with the executive director of the business regarding Ms. Cruz's actions.  Hispanics United demonstrates the fine line between protected concerted activity and improper employee conduct and emphasizes the challenges employers face in taking adverse action for what seems to be improper behavior.