NLRB General Counsel Promises’ Vigorous’ Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social, Health and Safety Issues – Employment and HR

United States: NLRB General Counsel Promises’ Vigorous’ Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social, Health and Safety Issues

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On March 31, 2021, Acting Advocate General of the NLRB, Peter Ohr, issued a memorandum titled “Enforcement of National Labor Relations Law through Vigorous Enforcement of Mutual Assistance or Protection and intrinsically concerted doctrines ”to all regional directors. While the memorandum does not change the NLRB precedent in any way, it is an overview of the enforcement and litigation strategy of the Office of the General Counsel, which could lead to changes in the law over the next few years. months and years.

Basically, the memorandum spelled out the desire of the Acting Advocate General to aggressively enforce the rights of employees under Article 7 to engage in “mutual aid or protection” and “welfare” activities. intrinsically concerted ”well beyond conduct which is a precursor to a union campaign, by extending such conduct to the defense of the political and social justice of employees, which is a hot topic in almost all places working today.

The health and safety concerns underlying the COVID-19 pandemic and the social justice movements percolating over the past year have created a confluence of circumstances leading to increased employee interest in advocacy. “hot” social issues in the workplace. This dynamic has been fully displayed by union leaders who seek to organize new members around more social issues. This is exemplified by graduate students seeking to organize and form unions, while advocating for social justice concerns on campus.

“Mutual aid or protection in today’s landscape”

Ohr argued for a broader view of “helping or protecting” in line with current workplace discourse on today’s social issues. Importantly, however, Ohr acknowledged that such conduct is protected under section 7 of the Act when it “relates directly to the interests of employees as employees”.

Ohr cited examples of where employee conduct obtains the protection of the Act, which is instructive: for example, public comment, promotion and participation in work stoppages in support of an increase minimum wage – a legislative issue – would be protected by law. when expressed by employees earning around minimum wage. Likewise, employees who work with or are undocumented immigrants who protest in response to a sudden crackdown on undocumented immigrants, may also be protected.

Ohr promised to “firmly enforce[e] the provisions of the Act “in this area, while commenting on recent Council decisions which restrictively applied” mutual assistance or protection. “Although Ohr may disagree with Council decisions in 2019 Alstate Maintenance, 367 NLRB n ° 68 (2019) and Quicken Loans, 367 NLRB n ° 112 (2019), Ohr did not go so far as to criticize the majority participation in these cases. Instead, Ohr noted where those rulings “left clues to demonstrating mutual aid or protection that should be fully utilized.” Ohr provides a manual for employees and unions on how to get the protection of the law: ensuring that workplace objections or protests can be linked to the interests of employees in the workplace as ’employees.

For example, the Council Alstate maintenance (which we discussed here) argued that the employee’s comment to his supervisor that he did not want to do a job because customers did not tip was considered unprotected activity. However, the Committee noted that the comment would have been protected if it was intended to change the employer’s policies or practices. Likewise, in
Quicken Loans, the Commission concluded that an employee’s comment about not wanting to deal with a customer complaint because it was a “waste of time” was not protected because it was not was not intended to change workers’ policies.

“Finding an intrinsically concerted conduct”

Ohr also discussed his desire to adopt a broad definition of what constitutes an “inherently concerted” activity in terms of workplace discourse. Of course, to gain section 7 protection under the Act, the activity must be “concerted” (in addition to being protected). To be concerted, the conduct might involve only one speaker and one listener (as opposed to several people speaking together). Additionally, Ohr noted that thinking about group action is not a mandatory part.

Ohr said the Office of the Advocate General is likely to seek broad application of what constitutes an “inherently concerted” activity. Specifically, the Acting Advocate General may seek to protect the rights of employees to engage in speeches related to occupational health and safety issues and racial discrimination, which have not yet been approved by the advice – in addition to the categories of speech that have been traditionally protected, such as wages, job security and working hours.

* * *

It is certainly worth considering how the Acting General Counsel intends to “vigorously” enforce employee rights under section 7 in accordance with this Memorandum, and whether the law will change in any respect. Stay tuned!

NLRB General Counsel Promises’ Vigorous’ Enforcement of Employees’ Rights to Engage in Workplace Advocacy Related to Social, Health and Safety Issues

Originally posted by Proskauer, April 2021

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.

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