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Labor Intensive: Complying with the National Labor Relations Act
Practical Law Legal Update 5-540-1085 (Approx. 4 pages)
Labor Intensive: Complying with the National Labor Relations Act
by Practical Law Labor & Employment
| Published on 03 Sep 2013 • USA (National/Federal) |
Resources to help employers comply with the National Labor Relations Act (NLRA) as it is being enforced by the National Labor Relations Board (NLRB).
The National Labor Relations Board (NLRB) has made the National Labor Relations Act of 1935 (NLRA) increasingly relevant to private employers with nonunionized workforces. The NLRB's expansive view of what activities are protected by the NLRA, such as in the area of employees' social media activity, has led to decisions that have significantly changed employers' obligations in both unionized and nonunionized workplaces. The NLRB has also used the agency rulemaking process to implement new requirements, such as attempting to require all employers to post notices about employees' rights under the NLRA, among other actions.
The NLRA governs employer-employee relationships by:
- Ensuring private sector employees can engage, or refrain from engaging, in protected concerted activity, which includes employees discussing and attempting to improve terms and conditions of their employment, with or without unions. Employees or their unions can enforce their rights under the NLRA by filing unfair labor practice (ULP) charges with the NLRB.
- Permitting employees to support or refrain from supporting a union.
- Regulating how employers and unions negotiate collective bargaining agreements (CBA) (the agreements setting out the terms and conditions of union-represented employees' employment).
Nowhere has the NLRB been more active than in the area of investigating, prosecuting and adjudicating ULP charges and allegations that employers have interfered with employees' rights under the NLRA. Taking an expansive view of what activities are protected under the NLRA, the NLRB has:
- Asserted jurisdiction over employees' use of social media and issued decisions and advice memoranda regarding employers':
- ability to discipline employees for social media postings about the workplace; and
- social media policies that may contain provisions infringing on employees' rights.
- Prohibited employers from requiring as a condition of employment that employees waive their ability to pursue class or collective claims.
- Broadened union organizers' rights to access employers' property for union organizing.
- Permitted secondary "bannering" to publicly protest against an employer or a contractor that does business with that employer with which a union has a primary labor dispute (as distinguished from "secondary picketing," which is unlawful).
In addition, the NLRB continues to:
- Assert, despite US court of appeals rulings to the contrary, that it has authority to require employers to post a notice of employee rights under the NLRA (see Legal Update, Post No Bills: Insights from the DC Circuit's Ruling on the NLRB's Notice Posting Rule.
- Release educational initiatives and publications to inform nonunion workers of their NLRA rights, including:
- a website regarding protected concerted activity; and
- a new mobile smartphone application.
In light of these continuing developments, whether unionized or not, employers must:
- Understand the scope of employees' rights under the NLRA.
- Ensure that their employment policies do not interfere with these rights.
- Avoid disciplining employees for engaging in protected concerted activity.
- Prepare for an increased number of ULP charges and complaints.
Practical Law offers resources to help employers and their counsel comply with the NLRA and keep abreast of enforcement and rulemaking actions by the NLRB. Take advantage of Practical Law's:
- Legal Updates Archive under the Unions topic.