While Wisconsin becoming the nation’s 25th state to enact “right to work” legislation has made headlines, that legislation affects private-sector unionized workplaces only. Many employers may be unaware, however, that the National Labor Relations Act (NLRA) may regulate a place of employment, even if that workplace is not unionized.

The NLRA protects the rights of many private-sector employees to engage in concerted activity, with or without a union, when such activity is undertaken with respect to wages and working conditions, or to otherwise engage in concerted activity for mutual aid or protection in the workplace. That right is unknown to many employers. Employers may wrongly conclude that because they do not have a unionized workforce, they do not fall under the umbrella of the NLRA. Yet, the National Labor Relations Board, which generally enforces the NLRA, has become increasingly active in issuing rules and guidance that affect many employers in non-unionized workplaces. The risk to the unwary employer is that it may enact policies or procedures that violate the NLRA, subjecting the employer to complaints, actions, fines and penalties before the NLRB.

The NLRB takes a very protective view of the general right of all employees to engage in protected concerted activity for mutual aid and protection concerning pay and working conditions, whether or not the workplace is unionized. The NLRB has been active recently in finding that various employer policies unreasonably chill the employees’ exercise of such protected activity, at least in the estimation of the NLRB.

How can you begin to answer the question of whether your business is subject to the NLRA?
Here is a link that will get you started in determining whether the law applies to you: https://www.nlrb.gov/rights-we-protect/jurisdictional-standards. As an example, employers in retail businesses fall under the Board’s jurisdiction if they have a gross annual volume of business of $500,000 or more. Shopping centers and office buildings have a lower threshold of $100,000 per year. For non-retailers, jurisdiction is based on the amount of goods sold or services provided by the employer out of state or purchased by the employer from out of state. The Board takes jurisdiction when such annual inflow or outflow is at least $50,000. Note that employers who employ only agricultural laborers, those engaged in farming operations that cultivate or harvest agricultural commodities, or prepare commodities for delivery are excluded from NLRA jurisdiction.

As an Employer, what should you do to not run afoul of the NLRA?
First, understand that the employee protections under the NLRA may apply to you and your business, even though your workforce is not unionized. Next, understand that the NLRB has been particularly active of late in issuing guidance to employers in the development of workplace policies. In particular, the NLRB has been focusing on social media policies and handbook policies in general, with a strict eye to determine whether any of the employer’s policies unacceptably chill the employees’ right to engage in concerted activity for mutual aid or protection. In subsequent articles, we will explore recent developments in the context of employer handbook policies recently found by the General Counsel of the NLRB to be unlawful.

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