Did you know that your employees can organize, without “unionizing”, to get protection under federal labor laws? The National Labor Relations Act provides this alternative as a way to give employees more clout on the job by permitting workplace committees engaged in “protected concerted activity” to negotiate with an employer over wages and other terms and conditions of employment. The Act – enacted under President Franklin Roosevelt in 1935 – prohibit employers from retaliating against workers who join together to improve their working conditions.

    Employers typically think of the Act as a means of formal union organizing. It is however, much more expansive than that. No less of an authority than the United States Supreme Court said in a case in which workers walked out of a factory because it was too cold, that the Act protects non-union workers, too.

    When two or more workers act together (in concert) “to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection”, they are covered by the Act and the authority of the National Labor Relations Board. Importantly, the Act does not protect personal gripes or malicious behavior. But if the employer’s complained about conduct covers or affects other employees, it may well be protected.

    For instance, a health care rehabilitation facility in Muncie, Indiana distributed a communication policy governing employees’ use of social media, and informed employees that the policy had to be signed or else they would be terminated if they did not. One employee expressed her reservation to her co-workers that the policy as too broad since it imposed off duty internet restrictions. Upon her termination, she filed a charge with the NLRB in Indianapolis.

    The Board’s Regional Director notified the company that it was prepared to issue a complaint and the employer settled the case by reinstating the employee and providing her back pay. Moreover, the Board ordered the employer to remove certain provisions of the social media policy and post a notice advising employees of their rights under the Act.

    The lesson to be learned? Your non-union workers really have the same rights as a union employee if they band together and act in concert over legitimate workplace issues. When addressing terms and conditions of employment which affect a group, be mindful of the far reaching implications of “protected concerted activity”.

    Article by Loren K. Allison, attorney at law
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