You’re a non-union employer in a “Right to Work” state with at-will employees. You should be able to discipline your employees and institute company policies without concern for the National Labor Relations Board (NLRB), right? The NLRB enforces the National Labor Relations Act (NLRA) which only applies to unionized employers, right? Wrong.
The NLRB has jurisdiction over private sector employers whose activity in interstate commerce exceeds a minimal level. Generally, the NLRB’s jurisdiction is extremely broad and covers most private employers, including non-union businesses and those in “Right to Work” states, like Idaho. It enforces the NLRA, which at section 8, makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Section 7 provides:
Employees shall have the right to self-organization, 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…”
The NLRB uses the highlighted language to regulate “protected concerted activity” of non-unionized employers in a variety of situations. Concerted activity generally requires two or more employees acting together to improve working conditions, but acts of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on their behalf. For example, an employee of a major homebuilder with operations in 20 states believed he was improperly denied overtime pay because he and other employees were misclassified as supervisors. The company required workers to agree in writing to submit any future claims against the company to arbitration and that claims could only be made on an individual basis. Two years later, the employee informed the company he planned to seek arbitration on the job classification issue on behalf of him and all other supervisors. The company rejected it based on the arbitration policy. The employee filed an unfair labor practice charge with the NLRB which investigated and issued a complaint. The Board found the policy was unlawful because it precluded joint claims. In other words, it interfered with and restrained concerted activities.
Social media has expanded employees’ ability to engage in concerted activity under the eyes of the NLRB, which has proven difficult for employers to monitor. Five employees of a company which provides social services to low-income clients were fired after posting comments on Facebook concerning working conditions, including work load and staffing issues. One employee heard a coworker criticize other employees for not doing enough to help the company’s clients and posted those allegations to her Facebook page. The post generated responses from other employees who defended their job performance and criticized working conditions, including work load and staffing issues. All employees participating on Facebook were fired on the basis that their comments constituted harassment of the employee originally mentioned in the post. The case went to trial and the judge ruled that the Facebook discussion was protected concerted activity because it involved conversations among coworkers about their terms and conditions of employment, including job performance and staffing levels.
In a similar case, after a verbal disagreement with her supervisor at work, an employee went home and posted a negative comment about her supervisor on her private Facebook page. The post prompted responses from other employees who were Facebook friends. The employee was suspended the next day and later fired. The company argued the post violated the company’s internet policy when she criticized her supervisor online. The NLRB determined the firing was unlawful because the employee engaged in protected concerted activity when she criticized her supervisor on Facebook.
As highlighted by these examples, all employers engaging in interstate commerce, even non-unionized employers, need to be mindful of employees’ rights to engage in concerted activity when establishing and enforcing company policies and disciplining employees. Otherwise, expect a call from the NLRB.
Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.