It is difficult to imagine another time when uncertainty and concern in the workplace have been at a higher level. The COVID-19 pandemic has led many states to issue stay-at-home orders, mandating that non-essential businesses shutter and implement telework and essential businesses operate under restrictions. As states “reopen” essential and non-essential businesses, employees will be called back to workplaces different than the ones from which they were furloughed or laid off. There will be new rules and restrictions, new working conditions and, in some places, a new concern about workforce reductions for economic reasons. Workers’ concerns about job security, safety and working conditions are a prime target for union organizing.
Employers should keep in mind that worker expression of dissatisfaction or concern may be protected activity under the National Labor Relations Act (NLRA) and must not be met with reprisals. Instead, employers should be alert to possible organizing efforts, and should continue to be proactive in fostering positive employee-relations by:
- Ensuring employees feel safe at work,
- Investing in appropriate safety gear, and
- Having a dedicated human resources professional with an open door policy so that employees feel their concerns are heard.
Businesses are also seeing workers call for ‘hazard’ pay and personal protective equipment in situations where their work involves additional risk, such as frequent face-to-face interaction. Such demands may rise to the level of “protected concerted activity.”
Section 7 of the NLRA, protects “concerted activity.” Put simply, when employees express complaints or concerns for the mutual benefit of themselves and their co-workers, such as discussing or even griping about wages, benefits, and working conditions, or protesting what they feel are unsafe working conditions, it is protected concerted activity. Thus, employees who engage in this sort of activity are protected from retaliation by their employer, including termination, suspension, and threats of punishment. This protection extends to all non-management employees, including non-union employees. Employers must ensure that no disciplinary measures are meted out for protected concerted activity.
In addition, mid-size businesses who receive financial relief under the CARES Act must certify that they will remain neutral regarding any collective bargaining activity during the duration of the emergency loans they receive. This certification warrants extra employer precautions in dealing with employees who may be engaging in protected concerted activity.
Information about COVID-19 and its impact on local, state and federal levels is changing rapidly. This article may not reflect updates to news, executive orders, legislation and regulations made after its publication date. Visit our COVID-19 resource page to find the most current information.