The National Labor Relations Board (NLRB) Acting General Counsel Peter Sung Ohr issued a memorandum announcing that his office will return to “vigorous enforcement” of employee rights under Section 7 rights of the National Labor Relations Act (NLRA). Employers may remember that, during the Obama administration, the NLBR issued memo and decisions protecting various employee conduct, all under the guise of Section 7. Blatant employee insubordination and vulgar speech gained protections that were, in many respects, unprecedent. Ohr’s memorandum foreshadows a similarly employee-protective NLRB is coming.
In his memo, Ohr encouraged the Board to adopt a broad view of Section 7 of the NLRA, to cover a wide range of conduct, including “employees’ political and social justice advocacy when the subject matter has a direct nexus to employees’ ‘interests as employees.’” Ohr also provided examples of conduct he believes fall within this protected area of workplace “political or social justice advocacy,” such as media interviews regarding living on minimum wage, an employee’s “solo” strike to join a demonstration advocating for a $15-per-hour minimum wage, and protests over workplace immigration raids by the government. Ohr said, “[E]mployee activity regarding a variety of societal issues will be reviewed to determine if those actions constitute mutual aid or protections under Section 7 of the Act.”
As a reminder, private sector employees generally do not have free speech protections in the workplace. However, the NLRA may provide private sector employees freedoms to engage in speech, and other forms of expression, during work time and on the employer’s premises. This employee speech could be deemed disruptive to the operations of the business, or the employer’s image and reputation. Biden has promised to be a strong labor President. Thus, employers are likely to see strong employee protections being rolled out at the National Labor Relations Board over the next few months.
This week, President Biden announced a “White House Task Force on Worker Organizing and Empowerment,” which was directed to issue a report within 180 days regarding policies, programs and practices that can be used to promote worker union organizing and collective bargaining in the federal government. It is expected that the recommendations of this Task Force could have broader implications for private sector employers.