Overview: Just because an employer has a non-unionized workforce does not mean that the National Labor Relations Act (NLRA) does not apply. In fact, the NLRA offers protections to most employees, except agricultural laborers, domestic workers, family members, independent contractors and managers/supervisors. Similarly, the NLRA defines employer broadly and applies to all employers except for government organizations and railroads or airlines covered by the Railway Labor Act.
Therefore, it is important for employers to understand that, even absent a union, employees are guaranteed the right to engage in concerted activity to improve their wages, benefits and working conditions and an employer may not terminate them for this activity. In the wake of Facebook and forms of social media communication among employees, this has suddenly become a more prevalent protection for both union and non-union employees.
Trends: Recently the National Labor Relations Board (NLRB) has heard several cases - cases which did not involve a unionized workforce - and ultimately found that employers' social media policies, at-will disclaimers, and confidentiality of investigation policies violated the NLRA because they infringed upon an employee's right to engage in a protected concerted activity. Essentially, the NLRB is scrutinizing the language of employer policies that may hinder an employee's speech. Almost daily, the NLRB continues to actively pursue these claims against employers - union and non-union alike.
Author: Melissa Boyce, JD, Legal Editor
The US Supreme Court has agreed to hear a trio of cases involving whether employers can use mandatory arbitration clauses to ban employees from bringing class action lawsuits over workplace disputes. A ruling is expected by the end of the Court's term in late June.
Updated to reflect Kentucky's 'right to work' status.
Updated to include information on a federal court's decision to permanently bar the DOL from implementing and enforcing the new persuader rules.
Revised policy to refine provisions that, though compliant with state law, may conflict with National Labor Relations Act employee protections for employee discussion and disclosure related to the terms and conditions of employment.
The 9th Circuit's ruling in Morris v. Ernst & Young, LLP, deepens a split between the circuits, increasing the odds that the Supreme Court eventually will resolve the question of whether arbitration agreements may include class action waivers.
The National Labor Relations Board (NLRB) has held that graduate students who work as teaching and research assistants are statutory employees under labor law and, therefore, are entitled to unionize and collectively bargain for better working conditions.
Updated to reflect legal developments regarding West Virginia's 'right to work' law.
Updated policy and guidance to reflect the Defend Trade Secrets Act, effective May 11, 2016. See Defend Trade Secrets Act.
In Miller & Anderson, Inc., the National Labor Relations Board has ruled that employer consent is not required for bargaining units that combine contingent and regular employees so long as the employees share a community of interest.
The 7th Circuit Court of Appeals has ruled, in Lewis v. Epic-Systems Corp., 2016 U.S. App. LEXIS 9638 (7th Cir. 2016), that a health care software company's arbitration agreement violates the right of employees to engage in protected concerted activity under the National Labor Relations Act (NLRA) by barring them from participating in or pursuing wage-and-hour class action or collective claims. Because the ruling deepens a split among the circuits on this issue, it could lead to an eventual review by the Supreme Court to resolve the inconsistency.
HR guidance on complying with the NLRA.