Since last October, unfair labor practice charges have increased 16% according to the National Labor Relations Board (NLRB). NLRB General Counsel Jennifer Abruzzo said such numbers reflect more workers learning of, and exercising, their rights to collective action and bargaining in the workplace. The trend comes after NLRB leadership expanded their scope with several legal opinions which boost employee rights within the act, and the board’s own authority to reinterpret the law on issues like noncompetes, unionization, and unfair dismissal.
The rise in cases is a natural conclusion of increased action against workers meeting a move towards greater transparency on otherwise taboo topics in the workplace, especially for younger workers on Tik Tok. There’s also overlap between resurgent unionization efforts and the increased cases as recent rulings have loosened what counts as tampering with unionization effects, according to Stephanie Caffera, a labor and employment partner at law firm Nixon Peabody “Nonunion employers need to pay close attention to the NLRA in ways they have not had to do before, because NLRA rights affect many aspects of employment such as social media and confidentiality policies, the handling of employee complaints, and employee discipline and discharge,” she said.
Given the scrutiny from NLRB, here are some learnings from recent cases:
Become familiar with “protected concerted activity.” This cornerstone of labor policy means that employees have the right to discuss their wages and salaries and to speak up about workplace safety and other working conditions. “Some of those complaints can get heated, and savvy employees are filing unfair labor practice charges based on their employer’s response.”
Understand the NLRB’s view on unlawful threats. Employers should be aware that statements about the possible outcomes of collective bargaining, the risks of unionization and other comments may now be considered unlawful threats.
Rethink approach to employee relations. Employees who feel they are heard inside their organization and have the support of their managers, will first use those pathways to resolve their concerns. As Caffera put it, the main reason employees seek to form a union is because of how they are treated by their direct supervisors. Those who don’t have that confidence in their managers will turn outward—to a union, an enforcement agency or an attorney.
Traditionally California, Illinois, and New York have been the leading indicators of how difficult hiring regulations will get. A couple of new rules out of Washington State have suggested Olympia may be adding a new state into the mix.
For example, Washington passed a law (SB 5123), that prohibits employers from making hiring decisions based on off-duty cannabis use, or pre-employment drug tests. The state also passed a law that protects workers from productivity quotas.
Ken’s Take Away: Both bills reflect the increased legislative activity of labor organizers, who are also pushing similar legislation in dozens of states. While the latter bill is currently limited to ware
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