Over the past six months, the pro-labor initiatives created and developed by the current administration have exploded through aggressive decisions made by the National Labor Relations Board changing the way nonunion businesses look at their employment policies. 

The board is composed of five members who are appointed to serve staggered five-year terms, and the board’s office of general counsel, whose leader is voted in by the Senate for a four-year term. The present board has three members, all of whom were “recess” appointments by President Barack Obama. 

The National Labor Relations Act protects almost all private sector employees, whether union or nonunion, based on worker’s concerted activities under Section 7 of the act. It does not cover government employees, agricultural laborers, independent contractors or supervisors (with limited exceptions).  Although nonunion employers have always been subject to the NLRA and to the enforcement powers of the NLRB, the recent proactive decisions by the board have sent a strong message to the business community that no employment policies are allowed to interfere with an employee’s ability to engage in protected concerted activity. 

It remains to be seen if the board’s impact through it’s prior decisions can survive potential judicial scrutiny during the second half of 2013. For now, employers are advised to proceed with caution while staying tuned to the drama that may unfold for the NLRB.

This article appeared in the May 20, 2013 edition of Law Week Colorado.