The National Labor Relations Board (NLRB) is usually thought of as addressing issues related to labor unions, which leads many employers without unions (especially small employers) to assume that the law and enforcement agency does not impact their business. But despite this common misperception, the NLRB often extends its reach into non-unionized workplaces.
In fact, the agency has been in the news frequently in 2023 for doing just that. Recent rulings and opinion letters from the NLRB about non-disparagement clauses, abusive outbursts by employees, non-compete agreements, and handbook policies have all employers scrambling to comply.
The NLRB enforces the federal National Labor Relations Act (NLRA), which, among other things, protects the right of all employees to engage in what are called “concerted protected activities,” which are those actions employees may take to try to improve their terms and conditions of employment. These protections can include conversations between employees about their workplace. Section 7 of the NLRA, which addresses this right, applies whether the employees are members of a union or not. More specifically, the NLRB appears concerned about employer actions that might stifle this communication, or make employees feel that they are prohibited from discussing their workplace concerns with other employees.
A series of recent NLRB decisions and opinion letters by the NLRB’s general counsel have expanded the scope of Section 7 in important ways, potentially making employers across industries newly vulnerable to unfair labor practice charges asserting that employees’ rights were violated. For example:
- An NLRB decision in late February 2023 (reinforced by a March 2023 NLRB general counsel opinion) found overly broad non-disparagement and non-disclosure provisions in severance agreements could improperly restrict employee speech and be unenforceable under Section 7.
- A May 2023 decision determined that an employee’s abusive outburst in the course of activity protected by Section 7 should not have formed the basis for discipline.
- A June 2023 memo by the NLRB’s general counsel takes the position that, with limited exceptions, non-competition agreements violate Section 7.
- A June 2023 decision returned to a more stringent standard for determining whether independent contractors should be classified as employees who have a right to unionize.
- An August 2023 decision adopted a stricter standard for evaluating whether workplace rules violate Section 7, focusing on whether a work rule could chill employees’ protected activity, including employee protected speech.
- An August 2023 decision expanded Section 7’s coverage of “concerted activity” to include solo actions by an employee that might prompt future group actions, notwithstanding the fact that “concerted” activity had in the past generally required two or more employees to act together.
Some of these topics have received significant attention in the press and social media. The real-world implications of a particular legal development aren’t always readily apparent from press coverage, so employers should consult experienced labor counsel to make sure they understand how these decisions impact their companies.
But there is no question that these multiple changes serve as a useful reminder: even if your workforce is not unionized, the NRLB is still relevant to your business.