The National Labor Relations Board (NLRB) enforces federal labor law. It adopted a new standard for deciding if an employer’s policy violates workers’ rights under the National Labor Relations Act’s (NLRA) Section 7, potentially making it easier for employees to improve their pay and working conditions.

What is the National Labor Relations Act?

Congress passed the NLRA in 1935, according to the NLRB, to make it clear that it’s federal government policy to encourage employees’ collective bargaining by protecting their freedom of association. The NLRA protects workplace democracy by giving private-sector employees a right to seek better working conditions and designate representation without fearing retaliation.

What is Section 7 of the NLRA?

Employees have a right to unionize or refuse to unionize. Whether there’s a union or not, workers can join together to improve their interests as employees. It’s illegal for an employer to restrain, interfere with, or coerce employees when they exercise these rights, reports the NLRB.

For example, an employer can’t legally respond to a union organizing drive by interrogating, threatening, or spying on employees who favor joining a union or promising the workforce improved benefits if they reject collective bargaining.

Section 7 of the NLRA guarantees employees:

“…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…(and the right)…to refrain from any or all such activities.”

Under the NLRA’s Section 8 it’s illegal for an employer “…to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7…”

What’s the New Rule?

The NLRB’s new standard for reviewing employer policies builds upon and updates a standard they adopted during the Obama Administration but was replaced during the Trump Administration. Under the new standard, the NLRB will:

• Determine if a disputed work rule reasonably tends to discourage workers from exercising their Section 7 rights
• Interpret these rules from the perspective of a reasonable employee financially dependent on the employer

As a result, if it’s the agency’s interpretation that a worker could reasonably understand the rule to limit or prohibit Section 7 activity, the NLRB will presume it’s unlawful even when:

• The rule could reasonably be understood as not restricting Section 7 rights
• The employer has no intention of limiting Section 7 rights

Under the rule, an employer may rebut this presumption by showing:

• The rule will help them with a legitimate and substantial business interest
• A narrower rule can’t advance that interest

The rule is currently in effect and can apply to NLRB cases initiated before the rule went into effect.

Why Was the New Rule Created?

The NLRB states that a past standard allowed employers to adopt overbroad work rules that discouraged employees from exercising their Section 7 rights. It didn’t require narrowly tailored rules to promote its legitimate and substantial business interests, which could burden employees’ rights.

They also rejected a prior approach to work rules, which held that some work rules were considered lawful, no matter how they were written or what interests were cited in defending the rule.

I Don’t Belong to a Union. Does This Apply to My Employer and Me?

It does as long as, according to the NLRB, you’re not:

• A public-sector employee
• An agricultural or domestic worker
• An independent contractor
• A worker employed by a parent or spouse
• An employee of an air and rail carrier covered by the Railway Labor Act
• A supervisor (unless you’re discriminated against for refusing to violate the NLRA)

The NLRA covers employees’ collective actions to improve their working conditions, whether they’re union members or not. The NLRB protects employees’ rights to engage in “concerted activity” (when at least two workers act for their mutual aid or to improve their jobs’ terms and conditions).

One employee may engage in NLRA-protected concerted activity if they’re:

• Acting on other workers’ authority
• Bringing group complaints to their employer
• Trying to encourage group action
• Trying to prepare for group action

Examples include:

• Two or more employees speaking with their employer about pay raises
• Two or more employees talking about work-related issues other than pay with each other
• An employee talking to their employer on behalf of co-workers about workplace conditions

Given these protections, the NLRA is a powerful tool to help employees better their situations, whether unionized or not. This rule is another step along that path.

 

Are You Concerned About Your Workplace Rights?  The Kingston Law Group Can Help

The Kingston Law Group’s employment attorneys protect employees’ rights and help them hold employers accountable for illegal behavior and policies. If you have questions about your rights or believe you may need legal representation to protect them, email us at hisaacs@kingstonlawgroup.com or call us at 609-683-7400 to schedule a consultation at our Mercer County law office. You will be glad you did!