NLRB Notes Rising Complaints about Safety and Inequity

​The National Labor Relations Board (NLRB), which enforces employees' workplace rights, is seeing a trend of workers advocating for racial justice and safety, Jennifer Abruzzo, the NLRB general counsel, told attendees at SHRM's Employment Law & Compliance Conference in Washington, D.C., on Feb. 27.

In the last few years, there have been more health and safety concerns related to the COVID-19 pandemic and more concerns over racial justice and social justice, Abruzzo said. One example of that is workers who brought complaints about being fired for wearing Black Lives Matters logos.

"We are seeing a lot more workers feeling empowered to engage with their employers about what they consider substandard wages or benefits," Abruzzo noted. Employees "are now saying, 'We matter, and if we don't like what's going on in our workplace we're going to speak up,' " with or without a union.

Another trend is gig workers being misclassified as independent contractors.

"We are seeing more gig work and more virtual work, and the question becomes are they an employee versus an independent contractor," Abruzzo said. "It is critical for workers that they are classified appropriately. Sometimes we have seen where there is a misclassification, whether intentional or not, and that's really affecting workers and the rights that they have."

Also speaking at the conference, NLRB Chairman Lauren McFerran noted three trends in recent cases under the current board: disputes over employees wearing union insignia, employers needing to show a business case for prohibiting certain protected activities and disputes over the size of bargaining units.

But many complaints that come to the board don't move forward. "About 60 percent of the charges brought before us are found not to have merit at all," Abruzzo said. "Last year, we settled 96 percent of our cases. The rest are litigated. You're talking about a small sliver of cases that wind their way" to the board for decision-making.

The board currently has three Democrats and two Republicans, but still has a high rate of unanimous decisions.

"Eighty percent of the work that the board does is unanimous decisions, and our job is to get those decisions out," McFerran said. On a bipartisan board, there's naturally going to be "differences of opinion about what direction the law should take, what the correct interpretation of the law is," she added. "We do take care to make sure our decisions are responsible."

Educating the Workforce

Part of the work the NLRB does is to educate employers and workers about their rights under federal law.

"It's critical that everyone, not only new workers coming into the workplace, but all workers, understand their right to organize," Abruzzo said. "Everyone needs to understand their rights under the statute, whether it's this generation or not."

She recalled workers who thought they couldn't unionize just because they were in the fast-food industry, which isn't true.

The agency recognizes the impact that co-workers feel when one employee is retaliated against because of their union activity. "We've got to look at the chilling effect on the colleagues in the workplace, not just the employee whose rights may have been violated," Abruzzo said. "We are trying to do all we can to dissipate that."

Some businesses may be concerned that unions will increase labor costs, decrease productivity or cause businesses to close. "The biggest misconception is that the union representatives are going to somehow disrupt operations as opposed to partner with you over issues of common concerns, frankly, to get the best result, have the best operations, have the best recruitment activity, have the best retention," Abruzzo said. "There are many times where collaborating and listening to other viewpoints and perspectives makes the product and the decisions that much better."

Overall, "unionization isn't necessarily a bad thing, and I think employers need to respect their employees' choices," she added. "The relationships work. We are all about making sure there are productive labor-management relationships in the workplaces. Respect each other. Let us conduct an election. Let the workers speak. Respect the process and then respect the ultimate result."

Times Change

The agency is responding to major changes in the demographics of the workforce and the nature of work in recent years.

"There's much more on social media these days. There's much more with tweets and Slack. People are virtual now. They are using different technologies to engage with one and other. It's a different world. We have to be flexible," Abruzzo said. "We have to always be looking at what's on or what the workplace looks like at any given time and adapt to that industrial reality."

The National Labor Relations Act was passed in 1935 during the Great Depression, partly in the hopes that better wages and working conditions for workers would help them invest more in the nation's economy.

"The beauty of our law is our law cares about what workers care about at any time in history," Abruzzo said. "It's been flexible throughout history. It is responsive to workers' interests."