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
Updated to reflect NLRB decisions on email.
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Updated to include information on an NLRB decision relating to concerted activity.
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HR guidance on complying with the NLRA.