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NLRB General Counsel Offers Guidance on Employee Political Advocacy

It’s Monday morning and 20% of your manufacturing workforce is absent without leave.

You turn on the news and see several of your AWOL employees participating in a rally at the state capitol, advocating for a "living wage." May you discipline or discharge the employees? Would it make any difference if they had left in the middle of their shift to join the rally? What if it was a PETA rally? What if they stopped working for 10 minutes and held such a rally on your production floor? What if the employees were not supposed to be at work? Does it matter whether your workers are members of a union?

The National Labor Relations Board’s General Counsel, Ronald Meisburg, has offered some guidance on these issues in a July 22, 2008, memorandum to the NLRB employees who are charged with enforcing the National Labor Relations Act. While the GC’s memo does not have the force of law, it does give employers a better idea of the NLRB’s current thinking and its plan for dealing with these issues.

The NLRA protects the right of all employees, whether unionized or not, to engage in concerted activity for "mutual aid and protection." This is why, for example, an employer cannot lawfully discharge employees for discussing their wages for the purpose of advocating for higher wages. Certain events in 2006 prompted the GC to consider the limits of protected concerted activity in the context of employee political advocacy. Specifically, the GC recognized a need to draw a distinction between protected concerted activity and unprotected political activity. As a matter of policy, the GC opined, the NLRB does "not want to equate political disputes with labor disputes, or promote the use of strikes and similar activity for resolving what are essentially political questions."

The GC concluded that political advocacy may be protected where "there is a direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees." Such a nexus may exist, for example, where employees advocate regarding the minimum wage or drug testing. Even where the nexus exists, however, such advocacy is protected only when it is non-disruptive and occurs on the employee’s own time in non-work areas. On-duty political advocacy is subject to restrictions imposed by lawful and neutrally-applied work rules, as is leaving or stopping work to engage in political advocacy.

In the first example presented above, there may well be a nexus between a living wage rally and "a specifically identified employment concern of the participating employees." The same could not be said of a PETA rally. Even if a proper nexus existed, however, it would not protect the AWOL employees from discipline or discharge pursuant to lawful and neutrally applied work rules. Similarly, the employees could be disciplined or discharged if they violated lawful and neutrally applied work rules by leaving in the middle of their shift to join the rally or by stopping work for 10 minutes to rally in the work area. An employer generally cannot discipline or discharge employees for stopping or leaving work without permission if their purpose is to obtain some improvement in their working conditions from their employer. The GC concluded, however, that such protection does not extend to employees who stop or leave work to support a political cause over which their employer has no individual control. Where employees participate in an off-site rally on their own time, however, there is little ground for discipline or discharge. All of this would generally be true whether or not the employees were union members.

Understanding and complying with the nuances of the NLRA is challenging for even the most experienced labor lawyers. In matters of NLRA compliance, what seems like "common sense" is often unlawful. The GC’s memo provides some useful guidance, but employers would be wise to consult an experienced labor lawyer prior to taking any action if confronted with a situation involving employee political advocacy.

Even though the content of the above Greenebaum Doll & McDonald e-bulletin is primarily informative, state and federal law obligates us to inform you that this is an advertisement. You have received this advisory because you are a client or friend of the firm.

About Greenebaum Doll & McDonald PLLC
Greenebaum Doll & McDonald PLLC is a widely-respected business law firm with approximately 200 legal professionals in six offices, serving local, national and international clients in virtually every industry. A forward-thinking business law firm, Greenebaum is committed to the practice of Breakthrough Law®. 

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