This blog recently discussed the upswing in EEOC retaliation charges and what employers can and should do about this undeniable trend. A National Labor Relations Board (NLRB) case now before the D.C. Circuit Court of Appeals on appeal provides a powerful reminder that non-union employers must also be concerned about retaliating against employees for exercising their NLRA rights.
It’s no secret that more and more non-union employees having turned to the NLRB – and with plenty of success – for help when being terminated or subjected to other employer treatment with which they disagree. The current NLRB’s expansion of what constitutes “protected concerted” activity under the NLRA has made it much easier for employees to allege and ultimately prove they were disciplined for exercising their NLRA rights. In fact, from protecting employee criticism of their employers on social media, to striking down countless seemingly innocuous handbook policies, to prohibiting arbitration agreements with class action waivers, the NLRB has been an accommodating, cost-free forum for employees feeling aggrieved by their employer.
This phenomenon is evidenced by the NLRB decision earlier this year finding that Virginia-based Inova Health System violated the NLRA when firing a nurse because she engaged in protected concerted activity – some of which took place four years before her termination. The NLRB reached this result despite the employer terminating the nurse only after a detailed human resources investigation of multiple workplace hotline complaints revealed that she had created a hostile work environment, shared unwelcome details with colleagues regarding her sex life and regularly used unwelcome profanity at work. The NLRB also found that another nurse who engaged in protected concerted activity along with the terminated nurse later was unlawfully denied a promotion as a result this activity, while a second nurse was found to have been unlawfully suspended for her overly aggressive treatment of a human resources manager while engaged in protected concerted activity.
So, what should a non-union employer do in the face of this new reality?
First, employers must know the ever-changing contours of what constitutes protected concerted activity under the NLRA, which means keeping abreast of the regular NLRB decisions that establish these contours. Second, all managers involved in employee discipline and other policy enforcement – including human resources personnel – should be trained on the NLRA the same way they are trained on civil rights and other employment laws. Third, disciplinary decisions must be scoured for any employee protected concerted activity underlying, or even arguably underlying, the discipline. Fourth, employee handbooks and any other personnel policies should regularly be reviewed for NLRA compliance given that the mere existence of a policy that an employee reasonably believes prohibits NLRA-protected conduct is unlawful.