Protection From NLRA Retaliation

Since 1935, the National Labor Relations Act (NLRA) has protected the rights of workers to engage in collective bargaining and other “concerted activity” for their mutual aid and protection. Under the NLRA, covered workers have the right to join or not join a union or engage in union activity. The NLRA protects more than just union activity, however. Simply joining together to improve working conditions or wages is protected; even two employees discussing working conditions is “concerted activity” that is protected under federal law. Having conversations about work on Facebook, Twitter or other social media is protected, as is the right to strike.

The NLRA contains strong provisions protecting workers from retaliation for exercising their rights under the NLRA. This includes retaliation for making a whistleblower complaint or filing an unfair labor practice charge. From their headquarters in Miami, the attorneys at Guttman, Freidin & Celler protect the rights of workers throughout Florida to file whistleblower complaints free from retaliation by their employer.

Facts About the NLRA

The NLRA covers most private-sector employees at businesses with 15 or more employees. Workers in the railway and airline industries, agricultural workers and domestic workers are exempted from coverage, although some of these workers are covered under other laws, such as the Railway Labor Act. Public-sector (government) employees are excluded, as are independent contractors and workers who are employed by their spouse or parent. Supervisors are not covered under the NLRA, except for claims related to discrimination or retaliation for refusing to violate the NLRA.

It is an unfair labor practice under the NLRA to discriminate against an employee for being pro-union (or anti-union). Companies cannot encourage or discourage union activities or sympathies among their workers by discriminating against them in regard to hiring, firing, or other terms or conditions of employment.

An employee can file an unfair labor practice charge against either the employer or a labor organization. The National Labor Relations Board (NLRB) will investigate the claim, evaluate it and decide whether it has merit. The NLRB works to settle the dispute informally, but if it can’t, the Board will issue a complaint and hold a hearing presided over by an Administrative Law Judge (ALJ). The ALJ can issue remedies such as reinstatement and backpay. It is possible to appeal the ALJ decision to the Board and even into federal court if grounds exist for an appeal.

Proving an NLRA Retaliation Violation

Four elements must be proven to establish retaliation under the NLRA. These are the four elements that must be demonstrated by the weight of the evidence:

1) The employee had engaged in protected activity, such as complaining about an NLRA violation (unfair labor practice) to the employer or a government agency such as the NLRB. Participating in an investigation and testifying in a legal proceeding as a witness are other examples of protected activity under the NLRA.

2) The employer knew that the employee had engaged in protected activity.

3) The employer took some adverse employment action against the employee. Examples of negative or adverse employment actions include termination of employment, demotion, discipline, denial of a promotion, refusal of an overtime request, or denial of some other work benefit.

4) The employer was motivated to take the adverse employment action by the employee’s protected activity.

Proving all of these elements usually requires a combination of direct evidence and circumstantial evidence to prove the facts of the case and the employer’s intent or state of mind. Often, the employer will allege some legitimate reason for taking the adverse employment action, and the other party will have to prove that the employer’s offered justification is a pretext for the actual retaliatory motive. Some cases involve “mixed motives” where retaliation and a legitimate excuse are behind the adverse action.

NLRA retaliation cases can be complex, but the key point to remember is that employees are protected against retaliation for engaging in protected activity under the NLRA.

The No FEAR Act Protects Federal Employees from Retaliation

The Notification and Federal Anti-Discrimination and Retaliation Act (No FEAR Act) was signed into law in 2002 and became effective in 2003. This law requires that employees be notified of their rights under the Whistleblower Protection Act and various anti-discrimination laws. The No FEAR Act holds federal agencies accountable for workplace discrimination against federal employees as well as retaliation for engaging in protected activity. Since federal employees are exempt from the NLRA, the No FEAR Act was necessary to give these workers some of the same protections that their private-sector counterparts enjoy.

Call Guttman, Freidin & Celler for Protection From NLRA Retaliation

If you have been retaliated against for exercising your rights under the NLRA, or if you want to come forward as a whistleblower but are concerned about retaliation at your workplace, call the whistleblower attorneys at Guttman, Freidin & Celler for a confidential case review. Call 800-654-8281 or contact us online to schedule a consultation.