Client Alert: NLRB turns up the heat on Non-Union Employers

The NLRB Turns up the Heat on Employers for Unfair Labor Practice Charges: Even Non-Union Employers Can Be Liable


Non-unionized employers—especially small businesses—often are surprised to learn they may be subject to federal labor relations laws and therefore subject to unfair labor practice charges. The NLRB has been aggressively prosecuting such charges, especially in the social media arena.

Federal Labor Relations Laws Applicable in Non-Union Settings

The National Labor Relations Act of 1935 (NLRA), applies to employers in most private-sector workplaces. The penalties for committing unfair labor practices include back pay, reinstatement, and interest.

Non-Unionized Employers Beware!

Many employers may not know that the following actions have the potential for unfair labor practices claims:

  • Threatening employees with discipline, or imposing discipline on employees if they engage in protected concerted activity, such as discussing wages or working conditions with co-workers or if they speak on behalf of co-workers about working conditions or wages;
  • Transferring, laying off, terminating, assigning employees more difficult work tasks or otherwise punishing employees because they engaged in union or protected concerted activity.

What is protected concerted activity?

It is a violation of the NLRA for an employer to discipline employees (including non-union employees) for discussing wages or working conditions.  “Working conditions” can include an employee’s negative remarks about a supervisor or co-workers—if it is “concerted activity” as discussed below. And, although normally more than one employee must be involved (thereby making the activity “concerted”), even a single employee can be engaged in protected concerted activity if that employee purports to be acting on behalf of a group, or preparing for group action.

Examples of protected concerted activity:

An employer who fired a salesman for being an “outspoken critic” against special two-hour meetings, which sales personnel were required to attend without compensation before the store opened, committed an unfair labor practice.

An employer who fired two employees who composed a letter protesting changes in the method of compensation committed an unfair labor practice.

An employer who disciplined a salesperson at a car dealership who criticized the dealership’s handling of a sales event on his Facebook page committed an unfair labor pracrtice. The sales event was intended to promote a new car model. The salesperson posted mildly mocking photographs that included his co-workers. 

An employer who fired an employee who posted negative comments on Facebook from her home computer on non-working time about her boss  (calling him a scumbag), committed an unfair labor practice. In this case, the employee’s comment received favorable responses from co-workers  and thus the NLRB said the employee had engaged in protected concerted activity.

Special Concerns About Social Media Policies

Employers should make sure their social media policy does not run afoul of the NLRA. Based on recent cases, the most common problems with social media policies is that they are overly broad, i.e. they can be construed as prohibiting employees from discussing terms and conditions of employment. For example, the NLRB has found the following prohibitions in  social media policies  to be overbroad and in violation of the NLRA:

  • Inappropriate discussions about the company, management and/or co-workers.
  • Prohibiting any social media post that embarrasses, humiliates or defames the company or any employee, supervisor etc.
  • Prohibiting employees from making disparaging comments when disusing the company or the employees supervisors, coworkers or competitors. Prohibiting use of the company’s logo and photographs of the company’s premises.

(See August 18, 2011 Memorandum from the NLRB’s General Counsel to all Regional Directors)

Removing all of these provisions would make most social media polices meaningless. However, based on the Memorandum, it appears that employers may still be able to have effective social media policies with these types or provisions if the policy contains an appropriate disclaimer. Such disclaimer should explicitly inform employees that the policy will not be construed or applied in a manner that improperly interferes with employees’ rights under Section 7 of the NLRA.

Lessons for Employers

The lesson for employers is to be very cautious when considering  discipline against an employee who voices concerns or makes complaints to a manager or supervisor about working conditions or pay, especially in situations where other employees are present, or where the employee says he is speaking on behalf of his co-workers. These activities may be “protected concerted activity” under the NLRA. The prohibition against discipline or termination applies to griping or complaining about such subjects in employee break room as well as in the social media arena, i.e. Facebook or Twitter.

To help guard against unfair labor practice charges, your supervisors, as well as anyone who handles employee complaints, should be trained on and aware of the law protecting certain concerted activities. Additionally, you should review your social medial policy in light of the August 18, 2011 Memorandum from the NLRB mentioned above and consult with experienced employment law counsel if you have questions about your policy.

For more information regarding the NLRB, NLRA, unfair labor practices claims or any other employment law related questions, please contact the head of GDHM’s Employment Law group, Susan Burton, [email protected], 512.480.5738.

Notice: We are providing this client alert as a commentary on current legal issues, and it should not be considered legal advice, which depends on the facts of each situation. Receipt of this client alert does not establish an attorney-client relationship. The listed attorneys and/or other attorneys may provide services in connection with a particular matter.