Q. "Do we need to be concerned about recent NLRA headlines?"
Answer:
These headlines are not a concern for most of our clients, but here's what's going on and what you need to know:
What’s happening?
In August 2023, the National Labor Relations Board (NLRB) leveled up to be more protective of employees’ rights to free speech and “concerted activity” by announcing a new standard for whether work rules violate the National Labor Relations Act (NLRA). Though there will likely be an appeal, the NLRB plans to enforce the new standards in the meantime.
How does this affect most U.S. employers?
There is very little concrete guidance. Only cautions that an employer needs to review restrictions on employee speech, activity, or disparagement including:
Sharing information about pay, benefits, and working conditions
Use of social media for “concerted activity”
Nondisparagement rules and rules prohibiting outside employment
How does this affect religious employers?
For the most part, not at all! Generally, the NLRB has no jurisdiction over religious organizations.* However, if a church or other ministry nonprofit is operating other businesses (i.e., coffee shops, community centers, community food banks, etc.) that have employees who do not “effectuate the religious purpose” then these organizations could potentially be included in the ruling. Visit the NLRB site for further details.
What now?
Determine if your organization could have employees protected by the NLRA. If so, review your handbook, policies, and agreements. When prohibiting an employee from criticizing an employer, the NLRB requires the policy contain clear language stating prohibitions do not include NLRA-protected activity. There is no precedence yet that a disclaimer is sufficient, but many attorneys are theorizing that is the best current course of action.
If you are confident the NLRB has no jurisdiction over your organization, it still may be time to review your policies and practices, just to be sure they are not overly restrictive without cause.
*Currently, the NLRB uses a three-pronged evaluation to determine whether or not they consider a religious organization (i.e., church, school, etc.) exempt. Is the organization: (1) holding itself out to the public as a religious entity; and (2) a non-profit institution; and (3) religiously affiliated.