The National Labor Relations Board continues its recent streak of overturning board decisions from the Trump administration that limit the rights of employees to organize and complain about working conditions. The latest decisions expand federal labor laws to cover workers in non-unionized companies.
The first decision widens the definition of "concerted activity" under the National Labor Relations Act to apply to protests that involve a single worker. Concerted activity generally means a group of employees challenging terms and conditions of employment. The new case concluded that this term also applies to actions by a single worker if it could later lead to similar protests by other employees. If the work condition opposed by the single employee affects other workers, it could be construed as concerted activity.
The second case overturned a prior board decision holding that NLRA anti-retaliation protections do not apply to employees who protest the company’s treatment of non-employees. The case before the NLRB involved employee protests over an employer declining to rehire a former worker. The NLRB concluded that job applicants fall within the NLRA’s retaliation prohibitions. However, the board went beyond this holding, finding that the law also includes protests over working conditions for non-employees such as unpaid interns.
These cases demonstrate the current NLRB’s maximalist approach to interpreting its enabling legislation. These decisions are likely to be challenged in federal court, but absent reversals of these administrative cases, employers can expect to face unfair labor practice claims for policies and actions considered legal a few years ago.
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