The National Labor Relations Act (“NLRA”) is a series of federal laws that regulate employee-employer relationships. Though the NLRA is largely concerned with the regulation of labor unions, there are several provisions which protect all workers, regardless of union membership. Almost all private-sector workers are protected by the NLRA. The NLRA is enforced by the National Labor Relations Board (“NLRB”).
Protections Which Apply to All Employees Regardless of Union Membership
The NLRA protects all workers who engage in “concerted activity.” Essentially, the NLRA gives employees the right to act together to try and improve their pay and working conditions.
Generally, the requirement that the action be “concerted” means that two or more employees must be involved in the action. However, this is not always the case, such as when an employee involves co-workers before acting or, when an employee acts on behalf of a group of co-workers. The action must also concern the terms or conditions of employment.
Both of these requirements are usually easily satisfied. The action does not have to be a formal attempt to unionize or otherwise bargain with the employer, in fact, the action does not even need to occur at the workplace to constitute protected concerted activity. For example, in a recent case the NLRB found protected concerted activity where five employees posted on Facebook status about a coworker’s complaint to the employer.
However, actions which do not seek to improve wages, terms or conditions of employment are likely not protected. Often, these types of actions are nothing more than previous grievances. For example, a Facebook post in which employees complain about the personal hygiene habits of a co-worker or supervisor does not concern wages, terms or conditions of work, it is merely a personal gripe, and is not protected concerted activity. Furthermore, actions are not protected if they are reckless or malicious. For example, employees who sabotage or destroy equipment, threaten violence, reveal trade secrets or spread lies about the employer’s product are not protected by the NLRA.
An employer may not discipline, demote, decrease wages or hours, fire, or take any other adverse action against an employee or employees who engage in protected concerted activity. The NLRB usually remedies violations against employees by reinstating fired or demoted employees and ordering back wages paid for the period in which the employee was unemployed
Other Employee Rights
Employees also have the right to join a union if one exists at the workplace, to refuse to join a union, to form a union if one does not exist at the workplace, or to decertify an existing union.
“Right to Work” vs. “At-Will.” What do these terms mean?
North Carolina is both a “right to work” and an “at-will” state. These terms are often misunderstood and incorrectly used interchangeably.
“Right to Work” means that workers in North Carolina cannot be excluded from work based on union membership. In technical terms, all employers in North Carolina are “open shops” meaning that they are open to both union and non-union employees. An employer in North Carolina cannot refuse to hire you, nor can they fire you, because you do not want to join a union or you are a member of a union. In non-“Right to Work” states, employers may have either “open shops” or “union shops.” Union shops require that all employees join and maintain union membership within a reasonable time of being hired. The Taft-Hartley Act made “closed shops” illegal. A closed shop refuses to hire any applicant who is not already a member of the union. “Right to work” does not mean that unions or union membership is illegal in North Carolina. The NLRA gives you the right to join, not to join or form a union without retaliation by your employer.
“At-will” means that the default employment contract in North Carolina can be terminated by either the employee or the employer for any reason, no reason, even a bad reason, so long as the reason is not illegal. Illegal reasons include racial discrimination, age discrimination, disability discrimination, sex discrimination, retaliation, harassment, and other reasons described on this site. “At-will” employment gives employees the freedom to quit their job at any time, but it also gives employers broad discretion to fire employees at any time.
The most common alternative to “at-will” is “just cause” employment, where an employer can only fire an employee for “just cause.” Usually the employer and the employee agree in a written contract the specific situations in which the “just cause” employee can be fired. In North Carolina, the default position is “at-will” which means that an employer can fire an employee for almost any reason or no reason unless they have another agreement in place.
“At will” employment is often misunderstood as having something to do with labor unions. This may be because labor unions often negotiate “just cause” agreements with an employer. Outside of that practical consideration, “at-will” employment has nothing to do with labor unions. A union employee may be “at-will” and a non-union employee may be “just cause” or vice versa. All that “at-will” really means is that both the employer and the employee can end the employment relationship for almost any reason.
For answers to your National Labor Relations Act questions and to set up a consultation, call a Hensel Law attorney today at (336) 218-6466.