The National Labor Relations Board (NLRB) is the agency that administers the National Labor Relations Act (NLRA), which is the law that protects employee rights to unionize and collectively bargain with their employers. The NLRB’s rulings had significant influence on employment law back in the mid 1950s, when a third of all workers in the U.S. were unionized. In recent times, this influence has been drastically reduced as the percentage of unionized employees in the private sector has shrunk to a tiny 6.6%, largely in manufacturing. Therefore, many employers, especially technology companies that predominately employ knowledge workers in the US, view the NLRB as a historical artifact with little actual power.

Starting in January 2012, this perception changed dramatically, when President Obama made three appointments to the NLRB panel of five judges during a recess of the Senate. With a quorum of judges, the NLRB, and its regional Administrative Law Judges, quickly issued a series of rulings holding that common employer policies on topics such as employment at will, social media usage in the workplace, internal investigations and arbitration agreements violated the NLRA.

Specifically, the NLRB and its Administrative Law Judges found that these standard policies could be interpreted to violate the employee’s right to discuss or negotiate the terms and conditions of their employment. Such “concerted activity” during off duty work times is protected under Section 7 of the NLRA because it allows employees to form groups, such as unions, and to collectively negotiate with employers for better wages and working conditions.

In January 2013, just as employers began to determine how to redraft these standard employment policies to comply with these new NLRB rulings, the DC Circuit Court of Appeals vacated the holding of an NLRB case because it found that the three NLRB judges had been improperly appointed during the Senate recess. This raised the possibility that all of the rulings made by the NLRB starting in 2012 until the present time could be vacated.

Impact on technology companies

So you can go back to not worrying about the NLRB, right? Wrong. It is highly likely that the DC Circuit Court decision will be appealed, and the NLRB has announced that they are going to continue to rely on the NLRB’s own case precedent and regulations to continue to enforce the rights of non-unionized employees to engage in concerted activity. This means that some of the technology sector’s most basic HR policies could be found to be unenforceable by the NLRB.

What can you do to protect your company against unfair labor practice charges filed with the NLRB? Have your legal counsel review any policies that your company may have including social media, at will employment, arbitration, internal investigations or that concern any off duty conduct to make sure that they do not violate the NLRA.

If you have any questions, please contact Valerie Menager, Esq. at: (650) 342-9600 or vmenager@carr-mcclellan.com.