‘Vigorous’ employee rights enforcement by NLRB in store for employers

In late March, Peter Sung Ohr, the Acting General Counsel of the National Labor Relations Board, issued a memorandum (GC 21-03) to the regional field offices expressing his intent to enhance enforcement of the provisions of the National Labor Relations Act protecting employees’ rights to engage in concerted activities for mutual aid or protection. That could include participating in a protest.

The memorandum is an important reminder for employers that the NLRA does not just apply to union employees or to employees seeking to form or join a union. Ohr’s announcement is of particular interest to employers with hourly workforces.

The phrase “mutual aid or protection” focuses on “whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees.” According to an April 8 blog post by employment law attorneys Rio J. Gonzalez and Rosemary Alito of K&L Gates LLP, the memorandum outlines an expansion of what constitutes protected, concerted activity.

The memorandum notes that employee conduct generally becomes concerted when it is “engaged in with or on the authority of other employees” or when an employee seeks either “to initiate or to induce or to prepare for group action.” Gonzalez and Alito write that concerted conduct revolves around employees’ intention to band together to improve their wages or working conditions. 

 Also read: COVID-19 and protected concerted activity

They add that the memorandum also highlights how concerted activity can occur outside of the context of union activity, such as when employees raise health and safety issues resulting from the COVID-19 pandemic or participate in social justice protests.

Nathan Kaitz, an employment litigator and labor lawyer at Morgan, Brown & Joy, offered his thoughts in an interview with Workforce.com on the NLRB’s new push to enforce the NLRA and what it can mean to employers with hourly workforces.

Workforce: How should employers interpret “vigorously and robustly” enforce the provisions of the NLRA?

Nathan Kaitz: Employers should interpret this expression from the NLRB’s Washington central office as a message to the field offices that receive and investigate unfair labor practice charges and determine whether or not to issue complaints based on those charges. The message to the field offices is to broadly interpret the phrase concerted activities for mutual aid or protection; to broadly consider when such protests tie into employee interests as employees; to issue complaints in close cases; and to consider novel theories of possible unfair labor practices when looking at worker political and social justice protests.

Workforce: So, if someone goes to a protest instead of showing up for a shift, they are protected under the NLRA and can’t be fired?

Kaitz: It depends what the protest is about because the protest must concern the employee’s interests as an employee. For example, if the employee skipped their shift to attend a protest over the death of George Floyd, this protest would not have any connection to the employee’s interests as an employee. Therefore, the employee could be disciplined/terminated for skipping the shift so long as the employee was treated in a similar manner to other employees who skip a shift.

If the protest was about the $15 minimum wage, then the protest could possibly affect the employee’s interests as an employee. If the employees at the workplace are hourly paid and earn less than $15 an hour and there is a concerted effort within the workplace to achieve a 15 minimum wage, then attending the protest is likely to be concerted protected activity under the NLRA. Firing the employee for attending the protest could prove problematic. If the employee who attends the protest about the $15 minimum wage works in a job where everyone earns more than $15 an hour, then attending the protest will not affect the employee’s interests as an employee and attendance at the protest would likely not be protected under the NLRA. Accordingly, the employee could be disciplined/terminated for skipping his/her shift so long as the employee was treated in a similar manner to other employees who skip a shift.

As the above demonstrates, the answer can be quite fact specific. Accordingly, seeking advice from labor and employment counsel is recommended before taking any disciplinary action.

Workforce: Why is there a need for enhanced enforcement?

Kaitz: There is no particular need for enhanced enforcement other than to send a message that the NLRB is on board with the political and social protests taking place around the country.

Workforce: Are there particular provisions of the NLRA that are subject to stricter enforcement? What are they?

Kaitz: This particular Acting General Counsel Memo refers to Section 7 of the NLRA regarding the rights of employees to engage in concerted activities for mutual aid or protection. But other provisions of the NLRA will undoubtedly receive a more union friendly approach under the Biden administration than under the Trump administration.

Workforce: Is this due to a change in presidential administration?

Kaitz: Yes. Generally speaking, a Democratic administration tends to be more union friendly and a Republican administration more business friendly.

Workforce: When does this enforcement begin to take effect?

Kaitz: Immediately, although the effects of this changed enforcement take time to materialize. The effects begin with an increase in the number of charges that result in unfair labor practice complaints which unless they are settled result in trials three to six months later and decisions months after that.

Workforce: How does this affect employers with large hourly workforces?

Kaitz: This affects employers both large and small. It can affect hourly paid employees and salaried/commissioned employees as well, provided those salaried employees are, in fact, employees and not supervisors.

Workforce: Is this primarily a union issue or how should employers in industries like retail and restaurants that are not unionized prepare for this?

Kaitz: While this affects both union and nonunion employers, it is primarily an issue for nonunion employers. Union employers generally have collective bargaining agreements which require just cause to discharge employees and have agreements to arbitrate disputes such as whether the employer had just cause to discharge an employee. Accordingly, any union employer attempting to discharge an employee for engaging in concerted activity for mutual aid or protection will likely go to arbitration (and maybe even if an unfair labor practice charge is filed as the NLRB will often defer to arbitration). So this will likely affect nonunion employers more than union employers. Nonunion employers should prepare for this more vigorous enforcement by first training human resource professionals on the rights of nonunion employees under the NLRA and then moving on to train managers and supervisors in this area. I would expect training on the rights of nonunion employees under the NLRA to be incorporated as part of ongoing training already undertaken for HR and other management personnel.

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