Most financial institutions would probably say that the National Labor Relations Board is the least of their worries. That may be changing.
Over the last 12-18 months, the NLRB has embarked on a clear course chartered to make itself relevant to all employers-not just those subject to unionized workers. In rendering class action waivers unenforceable, prohibiting social media restrictions, and now aggressively pursuing charges of labor law violations in non-unionized workforces, the NLRB is clearly attempting to extend and expand its scope.
Employers must be aware of certain protections under the National Labor Relations Act that apply to all employees. In particular, every employee has the right to engage in activity with and on behalf of other workers to impact the terms and conditions of their jobs. Hence, anything from a complaint about smelly bathrooms to dress codes to unfair compensation or hours is potentially a protected activity for which an employer cannot retaliate against an employee. Where this particularly arises is after the fact-in situations where an employee is discharged-and later relates the termination decision to some complaint he previously made. With an NLRB all too eager to insert itself into the non-unionized sector, and its cadre of extremely pro-employee judges, plaintiffs’ lawyers are increasingly finding that proceeding with a complaint through the NLRB is a viable option.
Employers should take care to have documented internal complaint procedures and to have written materials supporting disciplinary and termination decisions. Now, more than ever, employers must be prepared to explain and support the reasons for its actions vis-à-vis employees.
