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Employment Blog

What's in Store for the Future - National Labor Relations Board

Authored by Dean R. Dietrich
Posted on August 23, 2013
Filed under Employment

On August 22, I spoke to the Employment Law Institute sponsored by the State Bar of Wisconsin on the topic of, "National Labor Relations Board:  What Will the Future Bring?" This topic focused on the recent congressional approval of new members to the NLRB which will eliminate legal challenges going forward to decisions made by the NLRB on the grounds of no quorum of Board members. In other words, the NLRB is now fully staffed which eliminates one argument that employers could make to challenge Board decisions.

With the newly constituted Board, one must wonder what things will employers face in regard to Union activity and employee rights. The new Board will continue to monitor employer decisions about statements made by employees on social media to ensure employers do not discipline and employee for "protected speech." Protected speech is defined as commentary or discussions about wages and working conditions that are protected by Section 7 of the National Labor Relations Act. The Board will also likely monitor the language of employee handbooks adopted by a company and challenge any language that is designed to discourage or eliminate the right of employees to engage in protected speech either in the workplace or in outside settings.

We also anticipate that the new Board will revisit the establishment of "Weingarten Rights" which would allow an employee in a non-union setting to have a representative of the employee's choosing if the employee is being investigated for or disciplined for inappropriate conduct or poor performance. This right has been granted and removed on several occasions and will likely be reinstated at some time in the near future as a legal requirement that companies must follow.

Employers should pay close attention to any actions or decisions from the NLRB. Employers should also conduct training for managers so they are aware of what constitutes protected speech and what type of conduct an employee may be disciplined for especially when using social media to communicate with others.