A new page on the NLRB’s website went live today. According to the NLRB, the page "describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union." The NLRB’s action is consistent with its push in the last couple of years to increase awareness of rights afforded under the NLRA. Similar ideas about notice of employee rights contributed to the NLRB’s notice posting rule. This rule is currently on hold as the NLRB defends its legality in federal court.
The new webpage contains about a dozen examples of employer discipline that were found unlawful in locations around the country. Many of the examples trumpet settlements with backpay (in one case, a settlement for $900,000 in back pay) and reinstatement. The examples appear intended to spark concerted activity. In the words of Chairman Pearce (D): "Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers."
Some of the examples the NLRB used include:
- Firing employees for their Facebook postings complaining about supervisors and other work-related grievances;
- Binding employees to arbitration agreements that prohibit class or group lawsuits;
- Firing a supervisor for refusing to disclose the names of employees who submitted a complaint letter using aliases; and
- Firing a group of employees who refused, for safety-related reasons, the employer’s order to return to work.
In light of this development, labor professionals should visit the new webpage to review the examples cited. In addition, the labor professional should examine closely any disciplinary actions that might implicate protected, concerted activity. The NLRB’s efforts to raise awareness and encourage group action will put a premium on being able to recognize and proactively address situations that might lead to liability for the employer.