Unions are gaining momentum across the U.S. Employees are organizing and forming unions in industries and businesses where they have not commonly done so. This week, the New York Times ran a story on Apple store employees unionizing. Last week, my friend, a surgeon at a nearby hospital, advised that medical residents were beginning to organize. It may be an ephemeral trend or one that we are going to continue seeing spread to other businesses and industries. Either way, employers need to be aware of what they can and cannot do to mitigate risk and comply with the law. That’s why this week I’m answering: Are you allowed to speak with your employees about unionizing at work?
Yes, but with discretion. For decades, employers have been able to discuss their views on unionization with their employees and advise that they have the right not to join a union, provided they are doing so in a non-threatening and non-coercive manner. The National Labor Relations Act, which applies to most private-sector employers, promises employees the right to engage in an expansive range of protected activities at work, including self-organizing, joining labor organizations, and engaging in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Accordingly, businesses cannot infringe on these rights.
On April 7, 2022, the General Counsel of the National Labor Relations Board (NLRB) issued a memorandum stating that she intends to change employers’ ability to speak with their employees about unionization. She reasoned that employers use mandatory meetings to coerce their employees not to join unions, and she seeks to urge the NLRB to disallow this practice. At this point, though, there is no change in the law.
In terms of best practices, your business need not totally refrain from communicating with employees about unionization but should tread lightly. It is key to understand well what you are allowed and not allowed to say and to be cautious about your communications. Further, training your management about what they may communicate to employees and what crosses the line is integral to ensuring legal compliance. If you intend to address unionization efforts with your employees, I recommend working with a trusted advisor on your communications.
ABOUT OFFIT KURMAN
Offit Kurman, one of the fastest-growing, full-service law firms in the United States, serves dynamic businesses, individuals and families. With 17 offices and nearly 250 lawyers who counsel clients across more than 30 areas of practice, Offit Kurman helps maximize and protect business value and personal wealth by providing innovative and entrepreneurial counsel that focuses on clients’ business objectives, interests and goals. The firm is distinguished by the quality, breadth and global reach of its legal services and a unique operational structure that encourages a culture of collaboration. For more information, visit www.offitkurman.com.
DELAWARE | MARYLAND | NEW JERSEY | NEW YORK | NORTH CAROLINA | PENNSYLVANIA |SOUTH CAROLINA | VIRGINIA | WASHINGTON, DC