Private-sector employers in Arkansas need to be aware of what the National Labor Relations Board is doing, because not knowing exposes them to litigation from employees or former employees and to costly disruptions that can come from NLRB investigations.
It’s also important to stay up to date on the board because its decisions often shift depending on who is in the White House, according to Tori Jones, a labor and employment attorney with the Rose Law Firm in Little Rock.
“Most companies that are doing business in Arkansas are going to be covered by the National Labor Relations Act, whether or not they have a union,” she told Arkansas Business. “And a lot of people tend to avoid these kinds of issues because they think, ‘I don’t have a union. Arkansas is not a union-heavy state. This probably isn’t a big risk to me. I don’t need to pay attention to it.’”
But they’d be wrong, she warned.
The NLRB enforces the act, which applies to employers’ handbook rules and any policies that govern their workforces. The act includes “Section 7” rights, like the right to join a union, to refrain from joining a union and to voice concerns on issues like safety and wages.
Jones advises hiring an attorney early on to make sure your business is compliant, and to review employee handbooks once a year, updating as needed.
She suggested a few things that employers need to know right now:
► Rules against insubordination and noncooperation, as well as restrictions on conduct that affects operations on and off the job, are lawful.
► It is unlawful to restrict discussion of wages or terms and conditions of employment, or to limit an employee’s right to talk to the press.
► It is legal to prohibit employees from speaking on the company’s behalf, or claiming to be a spokesperson.
More information is available at NLRB.gov, including a memo that “gives employers a good understanding, for the first time in awhile, of what rules are allowed and what are not, and it takes away the presumptions against the employer, and makes it more of a fair fight on deciding if rules are trying to restrict employees’ rights.”
Employers should care because, Jones said, violating the act exposes them to litigation and investigation. Both will negatively affect their bottom line.
“Money can come into play when there’s an employee who’s been terminated for something that might’ve been a Section 7 issue, which is, let’s say they were complaining about their wages and they found out the wages of their co-workers and they spread that to everybody, and the company found out about it, fired them for it. Well, that’s protected activity,” she said. The company would have to offer the employee a settlement or face litigation.
In addition, all it takes for the board to investigate a business is for one current or former employee to complain. Jones said it’s easy to complain, and some people do so in retaliation.
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When the NLRB receives a complaint, their investigation begins, and that’s bad news for any employer.
“They’ll tear up your operations for a little bit because they’ll pull folks off the line … They have a ton of authority to come in and do what they want,” Jones said. “It’s basically a session where they come in and write down and record everything that’s going on and interview as long as they want. It can last; they can go day to day to day if they need to.”
She also spoke briefly about the NLRB’s recent history.
Under President Barack Obama, in 2015, the board made changes that tipped the scales in favor of employees, Jones said. The union election process changed “dramatically” to favor unions and people trying to unionize. It cut the time companies had to take action against unions, and made union elections more costly to employers, she said.
Employers were also told they couldn’t prohibit employees from taking photos with their phones at work, because there could be safety issues the employees need to document. But, for employers, that also meant an employee could photograph a trade secret or create a safety issue by being on their phone while doing things like driving a forklift.
However, Jones said, the board under the Trump administration has reversed some of the changes that were made during the Obama administration, with the memo on NLRB’s website offering the clarity employers need.