What You Don’t Know Can’t Hurt You—A Personal Account of Bliss

We’ve all heard the adage "what you don’t know can’t hurt you." When it comes to HR compliance issues, experience tells us this principle is clearly invalid. A quick search finds that saying was first published in 1576—long before labor law was relevant. Let’s face it, ignorance of labor laws is not an acceptable excuse when it comes to human resources.

As HR professionals, we are generally familiar with the myriad laws and requirements that we must ensure compliance with: FLSA, OSHA, FMLA, USERRA, OWBPA, etc. For years, many employers that were not unionized operated blissfully unaware of the fact that they were covered under the National Labor Relations Act. I found myself on the wrong side of that bliss a number of years ago when, after conducting a follow-up investigation on an employee complaint regarding wage payment issues, I resolved to transfer the employee to another location.

My decision was not based on his complaint—it was valid. I recommended the transfer because of the way he chose to communicate his frustration—by loudly engaging in a profanity-laden rant about the situation in the middle of the business, in front of customers. From his point of view, there were issues that needed to be addressed and resolved, and he was speaking for both himself and his coworkers. From my point of view, he had violated company policy by this action, and the transfer seemed to be a reasonable solution. Apparently, the employee had a friend who was a labor attorney, and the next thing I knew an unfair labor practice charge had been filed with the NLRB against me and the company I worked for. Truthfully, at the time, I couldn’t fathom how this could be—we weren’t unionized. And thus, I learned that what I didn’t know could hurt me! Thankfully, our skilled attorney resolved the issue and the charge was withdrawn, but it was a painful learning "opportunity" for me on how the NLRA applies to both union and nonunion organizations.

The composition of the National Labor Relations Board changes with each administration. The agency’s website describes their structure as follows:

"The NLRB is a bifurcated agency governed on one side by a five-person Board and on the other side by a General Counsel. Board Members and the General Counsel are appointed by the President with the consent of the Senate. Board Members are appointed by the President to 5-year terms, with Senate consent, the term of one Member expiring each year. The General Counsel, appointed by the President to a four-year term, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases."

As such, we often see the activity and focus of the board change based on who is in the "Oval Office." We saw many of the more employee-friendly NRLB interpretations implemented under the Obama administration rolled back under the Trump administration. With President Biden declaring his intent to be the most pro-labor president in history, and his appointment of Jennifer Abruzzo as the NLRB’s general counsel, legal pundits predict expansion of the definition of "protected concerted activity" under Section 7 of the NLRA. It is also expected that handbook policies tied to employee activity will be more closely evaluated on how closely they relate to that definition.

Leaning on another common adage, "ignorance is not bliss" when it comes to the National Labor Relations Board and their oversight of the National Labor Relations Act. As you create your to-do list for the new year, consider adding a handbook review, keeping in mind the NRLB’s employee-friendly focus.

If your schedule doesn’t allow time for a handbook update, MRA can help. Please contact your member relations representative at 800.488.4845 to discuss.