THE NLRA’S INCREASING REACH

Even small, non-union businesses in right-to-work states need to pay attention to the National Labor Relations Act (the NLRA).  While that law is primarily concerned with relations between employers and unions, it applies to non-union shops as well.  That is because, as we explained in a previous post, it also governs the right to organize a union where there currently is none.

The NLRB (the Board administering the NLRA) has been pushing this function of the NLRA ever further, as the ABA recently reported to its members.  The net effect is an organic growth in the Board’s power and the NLRA’s reach, without Congress amending a comma of the law.  For example, severance deals or non-compete agreements, which until recently were never thought to fall under the NLRA’s purview, have been increasingly invalidated by the Board.  It reasoned that confidentiality clauses in either type of agreement, if too broadly worded, can be construed to prohibit employees from speaking to each other or to unions.  Both are central to the ability to freely organize, which the NLRA guarantees.

So we circle back to the need for businesses and their attorneys to pay close attention to these developments.  For companies that use them, existing non-competes or standard severances should be reviewed.  And for all others, increasing attention needs to be paid to the NLRA and the Board’s decisions, regardless of your business’ size or industry.