Thu, 09/24/2020
As Election Day rapidly approaches, many workers are speaking out on issues important to them and their communities. While these conversations are undoubtedly critical to our democratic process, workers should still be cautious of the impact of their political activities on their employment. As the National Labor Relations Board (NLRB) recently observed in an advice memorandum, not all speech—even speech made in support of pending legislation—is protected by the National Labor Relations Act (NLRA), which applies to many employees in the private sector. Rather, the speech must have a connection to working conditions to be protected.
The NLRB found that a worker’s non-work-related political activity was not protected because “[a]lthough the Board has used varying language to describe its approach to cases involving political advocacy, the test for protection, at bottom, requires the presence of a nexus between what is being advocated and employee terms and conditions of employment.” An employer may rely on unprotected speech or activities to discipline or terminated an employee. To be protected by the NLRA, an employee’s political speech or activity must draw a “connection to any employment concern of any employee.” Speech or activity focused on “the interest of the community at large” or “in furtherance of [the employee’s] own political agenda” is not protected.
All workers should be cognizant of the line between protected and unprotected political speech. Section 7 of the NLRA guarantees that employees can “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” In Eastex v. NLRB, the Supreme Court held that “mutual aid or protection” protects employees who act “in support of employees of employers other than their own,” or to “improve their lot as employees through channels outside the immediate employee-employer relationship.” 437 U.S. 556, 564-65 (1978).
Therefore, provided there is some “nexus” to working conditions, activity that seeks to support employees will be protected under the NLRA, even if those employees are not direct coworkers. Inova Health Sys. v. NLRB, 795 F.3d 68, 81 (D.C. Cir. 2015) (email to a group of nurses about the “transitional break between each round of nursing fellows” was protected activity); Eastex, 437 U.S. at 569-70 (distribution of union newsletter in nonworking areas of employer’s property during nonworking time that discussed a state “right-to-work” statute and a Presidential veto of an increase in the federal minimum wage was protected). However, workers should be cautious that the connection to working conditions is not too attenuated to be considered for “mutual aid or protection.” Id. at 568. “[A]n employee’s activity will fall outside section 7’s protective reach if it fails in some manner to relate to legitimate employee concerns about employment-related matters.” Tradesmen Int’l, Inc. v. NLRB, 275 F.3d 1137, 1141 (D.C. Cir. 2002) (lobbying effort unrelated to the employer’s working conditions or union workers not protected).
Notably some states, including the District of Columbia, have retaliation protections in place for employees in the private sector for political speech and activity.
Workers should continue to speak up through Election Day on the many issues that touch their lives, but they should also be mindful of the limits of the NLRA’s protections.
If you believe your employer has violated your rights under the NLRA, contact MSE at info@mselaborlaw.com.
