In a significant policy shift, the National Labor Relations Board (NLRB) recently expanded the interpretation of “protected concerted activity” under Section 7 of the National Labor Relations Act (Act). The decision, handed down on August 31, 2023, pertains to the case American Federation for Children, Inc. 372 NLRB No. 137. It overturns the ruling made in Amnesty International, 368 NLRB No. 112 (2019), thereby extending Section 7 protections beyond the Act’s specific definition of “employee”.
To elaborate, with this recent ruling, the NLRB now declares that the advocacy made by employees on behalf of individuals who do not strictly meet the Act’s definition of “employee” is to be considered a protected activity. Importantly, this includes individuals employed by an entity different from the employer of the advocating employees.
Exploring the details from JD Supra, this has implications for a broad range of situations, such as when employees advocate for contract workers, volunteers, or other non-traditional workers who may not have typically fallen under the protections of the Act.
The board’s decision is not without controversy. Critics argue it sets a concerning precedent, potentially broadening the scope of protected activities to a degree that was never intended by the drafters of the Act. This could potentially lead to an influx of unfair labor practice charges and additional liabilities for employers.
By contrast, proponents believe this expanded interpretation of “protected concerted activity” is a necessary update to ensure the Act reflects the realities of today’s diverse workforce. They argue that providing protection for employee advocacy on behalf of non-traditional workers will advance the Act’s fundamental goal of encouraging collective bargaining and mutual aid amongst workers.
Regardless of the varying perspectives, it is critical for businesses, large and small, to understand the implications of this ruling. Legal departments and HR professionals across sectors should familiarize themselves with this expanded definition to navigate the potential risks and to effectively manage their workforce in line with the updated rules.
In conclusion, the NLRB’s recent ruling is a clear indicator of shifting labor law dynamics that underscores the importance of timely legal updates for employers and legal practitioners in the field. As the interpretation of labor law continues to evolve, it becomes increasingly important to stay apprised of these changes to ensure compliance and manage potential risks effectively.