The NLRB in a Non-Union Setting

Many non-union employers fail to realize that the National Labor Relations Act still applies to them.  While the NLRA is most often applied in the union setting, at its most basic level, the NLRA protects the right of employees to engage in protected concerted activity.  Such protected concerted activity can occur in a union or non-union setting.  With that in mind, we want to go over a few of the more common situations in which the NLRA affects the non-union workplace.

One of the most common affected areas is employee handbooks.  Many employers remember several years ago when the National Labor Relations Board under the Obama Administration issued significant new directives regarding various handbook policies that the NLRB felt inhibited or restricted protected concerted activity among employees.  These included restricting discussions of compensation, restricting recordings in the workplace, restricting so-called workplace civility rules, and more.  In response to these directives from the NLRB, many employers updated their handbooks but also struggled with finding the right balance between rules that properly managed the workplace and rules that violated the NLRA.  Under the Trump Administration, the NLRB issued new rules that made life easier for employers with respect to employee handbooks.  The new NLRB rule (called the “Handbook Rule”) outlined three categories of employee handbook rules – (1) those that are lawful, (2) that that require additional scrutiny to determine lawfulness, and (3) those that are unlawful.  The NLRB determined that most handbook rules fell into the first category.  Under the Biden Administration, the NLRB recently rescinded the Handbook Rule.  As a result, the more restrictive NLRB guidance is back in place.  As a result, employers must once again be careful when drafting their employee handbook rules.

Another common but lesser known area of NLRA application in the non-union setting relates to employee representation in workplace interviews.  The interviews at issue are those that are part of workplace investigations.  Historically, union employees have been entitled to representation during workplace investigation issues.  In non-union settings, however, the NLRB has gone back and forth regarding whether or not employees have a right to representation during workplace investigation interviews.  As of December 2020, the NLRB holds that employees in non-union settings do have the right to representation during workplace investigation interviews if the employee being interviewed faces the possibility of discipline.  This representation refers essentially to having a co-worker present for the interview.  Importantly, such representation does not include legal representation.  The traditional rule applies – non-union employees do not have the right to legal representation in workplace interviews.  Furthermore, employers are not required to inform employees that they have the right to be represented by a co-worker; however, employers must grant the request if an employee requests co-worker representation.

As you can see, even though your workplace may be a union-free workplace, you should not ignore the NLRA and its various rules.

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