NLRB Acting General Counsel Calls for “Vigorous Enforcement” and Expansion of Employee Protections

On March 31, 2021, Peter Sung Ohr, the Acting General Counsel for the National Labor Relations Board (NLRB), issued a memorandum calling for the “vigorous enforcement” of employee protections under the National Labor Relations Act. The memorandum forecasts a significant shift in strategy for the NLRB’s policing of employee relations in union and non-union businesses, taking a more aggressive stance than the NLRB under the Trump administration. Iowa employers can protect themselves by ensuring their familiarity and compliance with the law, reviewing their employee relations policies, and informing their human resources and supervisory employees about the NLRB’s areas of emphasis. 

Impacted Employers 

The National Labor Relations Act (NLRA) applies to most employers except governments, railroads and airlines, and employers who employ only agricultural laborers. There are different jurisdictional standards depending on an employer’s industry, but employers should assume they are covered until a labor law attorney confirms they are not. 

The NLRB’s Plan for Vigorous Enforcement 

In addition to the well-known right to organize and bargain collectively, the NLRA grants employees the right to engage in “concerted activities” for the purpose of “mutual aid or protection.” In recent cases, the NLRB has applied a narrow view of what constitutes an activity taken for “mutual aid or protection.” Ohr’s memorandum advocates for a broader view of “mutual aid or protection” and argues that activities “not explicitly connected” to workplace concerns should be protected, including: 

• “[E]mployees’ political and social justice advocacy” when connected to the employees’ “interests as employees.” 
• A “hotel employee’s interview with a journalist about how earning the minimum wage affected her and employees like her, and how legislation to increase the minimum wage would affect them” 
• A “‘solo’ strike by a pizza-shop employee to attend a convention and demonstration where she and others advocated for a $15-per-hour minimum” wage; and 
• “[P]rotests in response to a sudden crackdown on undocumented immigrants and the possible revival of workplace immigration raids.” 

The memorandum also suggests that two major societal issues—workplace health and safety and racial discrimination—may be so vital to employment that they are “inherently concerted.” When an issue or topic is “inherently concerted,” the NLRA may protect discussions as “concerted” even if there is no group action contemplated. 

Ohr’s view of the law would provide much greater protection for employees than what has previously been recognized. For instance, if “racial discrimination” is considered inherently concerted, and protests regarding “political and social justice” need not be “explicitly connected” to workplace concerns, an employer could face scrutiny for disciplining an employee who misses work for a social justice or political rally. The specific facts of a case will decide the outcome, but employers should at least be mindful of the NLRB’s aggressive posture in this area.  

Protecting Iowa Employers 

The memorandum is not controlling law, but it does signal the NLRB will be more active, and will apply broader, more employee-friendly interpretations of the law, during this administration. If you have any questions about interacting with employees who may be engaged in “concerted activities” or other union-related activity, or if you are facing an NLRB charge, please reach out to one of BrownWinick’s Employment & Labor attorneys for assistance.  

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