More NLRA Enforcement Coming

The Acting General Counsel of the National Labor Relations Board (NLRB) has issued a memorandum to NLRB regional field offices signaling significant changes to enforcement priorities under the National Labor Relations Act (NLRA). It says the NLRB will be robustly enforcing the Act’s provisions that protect employees’ rights and cases involving the retaliation against concerted employee conduct will be vigorously pursued. The memo cites increased workplace health and safety issues resulting from COVID-19 and employees’ political and social justice advocacy concerns as factors necessitating increased NLRA enforcement.

The NLRA is a federal law that grants employees the right to form or join unions; engage in protected, concerted activities; address or improve working conditions; or refrain from engaging in these activities. NLRA applies to almost all private employers but not federal, state, or local governments; employers who employ only agricultural workers; and employers subject to the Railway Labor Act. The NLRA protects nearly all employees in the private sector, not only union employees or those seeking to form or join a union. NLRA protected concerted activities often occur outside the union activity context.

The political party of the presidency has majority representation on the NLRB. Changes in the presidential administration often lead to significant changes for employers. The memo reflects that. It says recent decisions issued by the current Board have restricted rights for employees.

The enforcement priorities highlighted the memo are in stark contrast to enforcement priorities under the previous administration. It is a clear indication that employers should expect increased NLRB oversight for the foreseeable future.

More Concerted Activities for Mutual Aid and Protection

The NLRA grants all covered employees the right to engage in concerted activities for the purpose of mutual aid or protection. Mutual aid or protection focuses on whether there is a link between the activity and matters concerning the workplace or employees’ interests as employees. The memo says such a link will be broadly construed. It outlines an expansive characterization of what is protected, concerted activity.

The memo says employee advocacy can have the goal of mutual aid or protection even when the employees have not explicitly connected their activity to workplace concerns. For example, a solo strike by a pizza shop employee to attend a convention; protests in response to a sudden crackdown on undocumented immigrants or social justice concerns; and a hotel interview with a journalist on minimum wage issues. The memo also highlights how concerted activity can happen outside of the context of union activity; like when employees raise health and safety issues resulting from the pandemic or seek protections from government agencies.

Renewed Application of Inherently Concerted Conduct

The memo also signals a renewed enforcement of conduct that is inherently concerted. It says 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. In other words, concerted conduct centers on employee intention to band together to improve wages or working conditions.

The memo also says contemplation of group action is not required and employee discussions surrounding certain employment policies may be enough to constitute inherently concerted activity even if group action has not yet been contemplated or is in its early stages. Inherently concerted conduct need only involve a speaker and a listener. There are no magic words required for concert to attach.

The NLRB has previously found that certain categories of workplace life have been found to be inherently concerted—like exchanges of information concerning wages or wage differentials, changes in work schedules, job security, workplace health and safety, and racial discrimination. The memo expressly warns NLRB will be considering such categories and other applications of the inherently concerted doctrine for the foreseeable future.

Employers should:

• Work with counsel to ensure workplace policies comply with the NLRA, including the expansive definition of protected conduct that will be enforced for the foreseeable future.

• Expect an increase in NLRB oversight and NLRA enforcement.

• Expect an increase in complaints brought by the NLRB, including increased prosecution of cases involving retaliation against concerted employee conduct.

• Exercise caution when deciding whether or not to discipline or discharge employees who engage in discussions or activities related to workplace health and safety, social justice issues, or political views.