New Prez (After All That)

What mattered most for employment law last week was The Inauguration.  Well, not the ceremony itself, but what the change means for HR. In keeping with our blog’s promise, we want to focus on one single topic that last week made more important:  what The National Labor Relations Act does and means.

So, let’s skip for now the Biden Administration’s push for paid leave, proposed legislation raising the minimum wage, plans to extend unemployment benefits, tightening of rules for using contractors, support for LGBTQ rights in the workplace–whew!

The new Administration pledges to make it easier for employees to unionize.  Some of the ways it will do so are about helping unions win elections.  Two examples are shortening the time between when a unionizing effort is announced and when the vote will be, and allowing employees to divide into small units of workers within a department to form a union of a few even if most of a company’s employees prefer to remain union-free.

Even without a union organizing campaign, though, the National Labor Relations Act and the Administration’s enforcement approach will matter to you.

Why?  Because the NLRA says that non-management employees (or at least those in the private sector) can join together to complain about any terms and conditions of employment, even if there is no union.  And, like virtually all employment laws that say employees may do something, the law goes on to say that employers may not penalize employees for doing that very thing.  In other words, employers may not retaliate.  Likewise, employers may not have policies that restrict employees from exercising their rights to act together.  That means no policies that even suggest to employees that complaining can get them in trouble.  (Anyone feel like having their favorite HR lawyers review their Employee Handbook?)

The key term in the NLRA is “protected concerted activity,” and it means that two primary kinds of conduct are protected from retaliation: (1) going to management with another employee to complain about ANYTHING that relates to work, and (2) going to management on behalf of other employees to complain about ANYTHING that relates to work.  OK, not literally any anything, but almost every anything.

And to review perhaps the most pessimistic (hey, we are lawyers) of all the age-old HR maxims:

  • Question:  Who are most often the employees who complain?
  • Answer:  Those who know they are about to lose their jobs.

So, you can see how firing such a person just became more complicated–especially with federal authorities now looking to enforce those employees’ rights to complain.  Does a discharge soon after a complaint look retaliatory?  Maybe.  It depends on how prepared and careful you are as the employer.

These are choppy waters to navigate.  Yes, the Inauguration fireworks were pretty spectacular, but keeping them out of the workplace will mean understanding the NLRA and the concept of protected concerted activity–even if you do not have a union.