Keeping at the Head of the Class: Don’t Forget the NLRA

Private schools should remember that the National Labor Relations Act (the Act) may apply to them and the Act applies to unionized and non-unionized workplaces.

The Act impacts the employee handbooks, workplace rules and social media policies of these organizations.

Understanding the Act
The National Labor Relations Board (the Board) enforces the Act and has jurisdiction over most private-sector employers.  The scope of the Act extends beyond employers currently undergoing a labor union organizing campaign or those with established unions.

Private schools are within the jurisdiction of the Board, with certain exceptions.  The Board generally will not assert jurisdiction over employees of a religious organization who are involved in effectuating the religious purpose of the organization, such as teachers in church-operated schools. The Board also lacks jurisdiction over public schools and questions remain related to jurisdiction over charter schools.

The Act encompasses not only labor organizations but also addresses employee complaints regarding working conditions, such as wages, hours, and benefits. The Act grants employees the right to file claims for unfair labor practices in response to alleged employer violations.

Protected Concerted Activities
Section 7 of the Act protects employees at both unionized and non-unionized workplaces who engage in concerted activity for the purpose of mutual aid and protection. Section 8(a)(1) of the Act prohibits employers from interfering with, restraining, or coercing employees who exercise those rights.

A “concerted activity” involves two or more employees taking collective action for their mutual aid or protection regarding terms and conditions of employment.  A single employee may also engage in protected concerted activity if he or she is acting on behalf of other employees, bringing group complaints to the employer’s attention, attempting to induce group action or preparing for group action. 

According to the Board, a few examples of protected concerted activities are:

• Two or more employees addressing their employer about improving their pay.
• Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
• An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.

Handbook Rules
Private schools subject to the Act should regularly review their employee handbooks to ensure compliance. Workplace rules that interfere with protected concerted activities may be deemed unlawful.

The level of scrutiny the Board applies to employee handbook rules has varied over time, often reflecting broader shifts in labor policy under different presidential administrations. This scrutiny has included evaluating employee handbook rules related to confidentiality, workplace conduct, and employee discussions or sharing of information about wages and working conditions.  

To maintain compliance, private schools should consider conducting periodic audits of their handbooks, possibly in consultation with legal counsel, to identify and amend any provisions that could be interpreted as infringing on employee rights under the Act. 

Social Media Policies
In addition, private schools subject to the Act should regularly review and update their social media policies to ensure compliance with the Act. The Board has scrutinized these policies, recognizing that social media platforms serve as modern arenas for protected concerted activities. On these platforms, employees have the opportunity to engage in discussions about work-related issues, such as pay, benefits and working conditions.  Reviewing these policies is important to ensure compliance.

Navigating the New Administration
With the advent of the new Trump Administration, there is a possibility that the Board may shift its approach and policies regarding labor relations. Covered private schools should remain vigilant and keep abreast of any regulatory changes or new interpretations of the Act. By staying informed and consulting with legal counsel, employers can better ensure compliance and effectively navigate any changes in the regulatory landscape.

Phelps will continue to monitor developments related to Labor Relations and Education. Please contact Erin Malone, Helen J. Jay or any member of Phelps’ Labor and Employment or Education teams with questions or for advice and guidance.