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How the NLRB’s Recent Determination Regarding the Firing of Employees Who Advocated for Better Working Conditions May Affect New Jersey Workers

Workers are often best able to negotiate with their employers for better pay, safer or improved working conditions, and other features of employment when they can do so as a group. Many employers prefer, however, that their employees not do this. Federal and New Jersey labor laws protect workers’ right to organize for various purposes, including advocacy on co-workers’ behalf. The National Labor Relations Board (NLRB) investigates and adjudicates alleged violations of workers’ rights under federal law. A recent investigation by the NLRB found that a major online retailer violated the rights of two workers who advocated for better working conditions during the COVID-19 pandemic in 2020. While it is not a formal decision by the Board, it could offer guidance to workers advocating for change at employers in New Jersey and around the country. If you have concerns regarding wage or labor practices at your place of employment, consider reaching out to a New Jersey employment lawyer to discuss your situation.

Section 7 of the National Labor Relations Act (NLRA), found at 29 U.S.C. § 157, guarantees the right of employees to “self-organization.” They can join an existing labor union or form their own. They can use collective bargaining procedures in negotiations with their employers. Finally, they can “engage in other concerted activities” related to “collective bargaining or other mutual aid or protection.” The term “concerted activities” can cover a broad range of acts.

Under § 8(a)(1) of the NLRA, id. at § 158(a)(1), an employer commits an “unfair labor practice” if they restrain or interfere with any activities that are protected by § 7. Section 8(a)(3) bars employers from discriminating against employees because of “membership in any labor organization.” New Jersey has even more extensive protections for employee organizing. See, e.g. N.J. Rev. Stat. § 34:13A-5.3, 34:13B-2.

The two former employees involved in the NLRB matter had each worked for the employer for about fifteen years until the spring of 2020. They were involved in advocacy for improved working conditions and safety procedures, particularly with regard to protections against exposure to the SARS-CoV-2 virus, which causes COVID-19. They were also members of a group of employees that advocated for improvements to the company’s climate policies, and which garnered the support of thousands of other employees.

The employer reportedly fired the two employees in April 2020 for violating a company policy regarding external communications. The employees argued that the policy unfairly restricted them from speaking publicly about working conditions and other concerns. Hundreds of employees joined them in protesting the policy, according to media reports.

The two former employees filed a charge with the NLRB in October 2020. They alleged that the employer violated § 8(a)(1) by maintaining coercive rules, engaging in coercive activities against them, and retaliating against them for their protected concerted activities. They also alleged discrimination in violation of § 8(a)(3).

In early April 2021, the NLRB determined that the employer violated the NLRA by retaliating against the two employees. This is not a formal decision, but rather the result of the NLRB’s investigation of the claims. The agency reportedly told the employer that it would pursue formal charges unless they reach a settlement.

The knowledgeable and experienced employment lawyers at the Resnick Law Group advocate for the rights of employees and job seekers in New Jersey and New York. Please contact us online, at 973-781-1204, or at 646-867-7997 today to schedule a confidential consultation to discuss your rights and options with a member of our team.

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