National Labor Relations Board (NLRB)

Below is a reminder from the NLRB in a recent online article:

"With the new year upon us and amid an uptick in activity by the National Labor Relations Board (NLRB or the Board), the time is ripe for employers to refresh themselves on a basic labor principle that sometimes goes overlooked:

The right of employees to engage in protected concerted activity applies in nonunion workplaces.

What is concerted activity?

At the most basic level, concerted activity occurs where employees organize or discuss shared concerns regarding the workplace. A worker’s right to engage in concerted activity is protected under Section 7 of the National Labor Relations Act (NLRA or the Act). The NLRB’s website prominently provides a number of examples of what it considers protected concerted activities, including “talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.”
The Board has drastically expanded its interpretation of behavior that qualifies as protected concerted activity over the past year, which we’ve discussed here. For example, under the Miller Plastics case, solo protests should also be considered protected by the Act if they could be viewed as intending to induce mass actions based on elements from a wide range of possible evidence (so much for the “concerted” nature of this legal concept). Further, under the Lion Elastomers LLC II decision, the Board went so far as to restrict an employer’s ability to issue discipline in response to a worker’s profane speech or conduct purportedly taking place in the context of workplace activism. We previously published an in-depth analysis of that decision as well, available here.
What does all this mean for nonunion employers?

Even if your workforce is not unionized, your workers still have the right to engage in protected concerted activity under the NLRA. This means that the organization cannot discharge, discipline, threaten or coercively question a worker on the basis of their engagement in concerted activity. Again, to drill down here, this is the case even in workplaces where the workforce has not unionized and even if employees are not considering unionization whatsoever."

Remember: Rumors are not always untrue. They could very well be facts. And Corporate Spin could be flat out lies and fake news. But the NLRB makes one thing very clear: Employers shouldn't gaslight, threaten, or restrict the ability for employees to discuss these issues in an individual or concerted effort outside of the actual workplace.

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NLRA - NLRB Rules.

Broad rules that explicitly or implicitly encompass employment information or workplace conditions will be considered unlawful if they fail to clarify that they exclude discussions protected by the NLRA.

Rules that prohibit discussions about “work matters,” or any employer information that is “not public,” are unlawful unless they specifically exclude wages, hours and working conditions.

The NLRB’s precedents regarding confidentiality frequently raise employer objections concerning threatened disclosures of highly sensitive, protected information such as social security numbers, financial account numbers, passwords and other materials. With a nod toward these concerns, the GC’s Report notes that in one case, a rule prohibiting disclosure of “information acquired in the course of one’s work” was considered lawful, because it was nested among rules pertaining to compliance with SEC regulations and state and federal laws. The GC concluded the rule would be understood to be limited to “customer credit cards, contracts and trade secrets” and therefore would not inhibit employee discussion of their or their coworkers’ information.

Rules Restricting Criticism of Management

Rules that allegedly restrict criticism of the employer are another common source of litigation before the NLRB. The NLRA broadly protects the right of employees to criticize or protest labor policies or alleged mistreatment by management. The Report identifies as unlawful rules the GC found explicitly or implicitly limited employees’ rights to engage in zealous advocacy and criticism of their employers. These rules included some requiring civility toward management or prohibiting employees from engaging in “disrespectful,” “negative,” “inappropriate,” or “rude” conduct directed at supervisors.

A rule requiring employees to be “respectful of others and the company” was unlawful.
Do “not make fun of, denigrate, or defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors” was unlawful.

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"On August 2, 2023, the National Labor Relations Board (NLRB) issued its decision on Stericycle, Inc. In this landmark decision, the National Labor Relations Board (NLRB) established a new standard for evaluating workplace rules, particularly those addressing employee conduct outside work hours. The decision emphasizes the protection of employees’ rights to engage in protected concerted activity, such as discussing the terms and conditions of employment under the National Labor Relation Act (NLRA). As a result of this decision, there will be significant implications for employer handbook updates in 2024.

For background, the NLRA protects workers’ right to engage in “protected concerted activities,” which means acting together to improve their working conditions without fear of retaliation. This includes activities like talking with coworkers about wages or working conditions, organizing protests, and filing grievances. The NLRA protects most employees whether the workplace is unionized or non-unionized. "

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National Labor Relations Board (NLRB)

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