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6.7% of employees in the private sector are in unions.  Better stated, 93.3% of employees are not. It is, therefore, likely that you are union-free and happy about it.  If this has been the case for you, you probably are unfamiliar with the NLRA.  That should change.

Briefly, among other things, the NLRA protects employees’ rights to engage in concerted activity.  Normally, “concerted activity” is the same as being in a union. It really is much more and protects any 2 or more employees who seek to complain about their terms and conditions of employment in concert with one another.  What are terms and conditions of employment?  Examples – cleanliness of the work area, wages, treatment by management, company policies…  It is quite extensive and the NLRA protects these employees from retaliation or discrimination for their actions in complaining. 

In the past few years the agency enforcing the NLRA – the National Labor Relations Board (NLRB) – has been incredibly aggressive with enforcing employees’ rights in non-union companies.  For decades the NLRB has found it unlawful for employers to prohibit employees from discussing wages.  Now, however, they are enforcing this prohibition on a wider scale.  More recently they started questioning social media policies with great effect as it drove most businesses to redo their policies, sometimes redoing them several times as the NLRB developed its guidance.  And in the past year or so the NLRB has started attacking non-union businesses’ “at-will” language in employee handbooks.  Their developing position on at-will language is that prohibitively worded language which would not offer employees the option of getting union representation would chill employees’ from wanting to seek representation.

Where the NLRB will go next is not clear.  What is clear is that it is increasingly important for non-union employers to carefully craft their policies and communications to employees so as not to trigger an unwanted investigation by an agency seeking to expand its reach into the 93.3% of the world it has had little dealings with until recently.     

Thompson Coe and myHRgenius Tip of the Week is not intended as a solicitation, does not constitute legal advice, and does not establish an attorney-client relationship.


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Kevin M. Mosher

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