Thursday, August 21, 2014

The National Labor Relations Act: The Times They [Might Be] A-Changin’

Twenty years ago, non-unionized employers really didn’t have to pay much attention to the actions of the National Labor Relations Board. Things are different now.  If the past couple of years of NLRB activism – and Congressional reaction to that activism – have taught us anything, it’s that the state of the NLRB and the Act it’s charged with enforcing are subject to change at any time. For now, all employers, whether or not they are unionized or at risk of being unionized, need to watch NLRB developments very closely.
Here are some examples of recent NLRB actions and decisions that affect all employers:
  • NLRB decisions on employers’ social media policies, as well as employer practices related to employees’ social media use, have made clear that the Board sees social media as an extension of employee workplace communication protected by the National Labor Relations Act.
  • The NLRB has begun invalidating employers’ confidentiality policies if they treat “employee information” as secret from third parties.
  • The NLRB has signaled that it wants to dramatically change the joint employer standard used in the franchising and outsourcing industries.
These actions have sparked responses from Congress, sometimes including proposals for dramatic changes in the law. Legislators who feel that the NLRB’s actions reflect a radical pro-employee agenda have attempted to stop NLRB action on elections or, in one case, to abolish the NLRB entirely.  Among those who feel that the NLRB’s protection of employees and unions does not go far enough is one legislator who introduced legislation that would make unionizing a civil right.   These particular bills may not have a significant chance of becoming law, but it’s not likely that things are going to quiet down anytime soon.  We can expect that the current NLRB (which is appointed by the President with Senate confirmation and will change only by Presidential action) will continue to interpret the NLRA broadly and assert its authority vigorously.  As long as it does, Congress will continue to react.  The result of all that action and reaction could very well be legal changes that affect all employers.  You may want to add “NLRB” to the list of things that keep you up at night.
Posted by: Kate Bischoff
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