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labor relationsThe work of the National Labor Relations Board (NLRB), the Federal administrative body that enforces the National Labor Relations Act (NLRA), relates to employers of all sizes

According to Julie Young, a Columbus employment law attorney and namesake of the firm, JMY Law, LLC, “The NLRA impacts small businesses and non-unionized employers, large and small.”

In fact, says Young, the NLRB has become extremely activist in the non-unionized employer context in the past six or seven years. Barack Obama was president during those years and his appointees to the NLRB were far more employee-friendly than prior boards.

An example of that is how the NLRB has been interpreting Section 7 of the NLRA, says Young. That section gives employees the right to unionize and to engage in other concerted activities for mutual aid and protection, she explains. In other words, the Act gives “them the right to band together to address the terms and conditions of employment,” says Young.

The NLRB uses Section 7 to scrutinize the policies and procedures of non-unionized employers to determine if they “chill employee’s rights to engage in certain activities related to the terms or conditions of employment. Anything an employee does to get other employees to join with them to argue a term or condition of employment is covered by Section 7,” she says.

A recent case out of New York is a perfect example of how the NLRB interprets Section 7. An employee complained about his boss online and was fired for his posts. The lower court ruled for the employee, saying his rants were protected by Section 7. The employer appealed, but the employee’s claim was upheld at every step, including by an order of the NLRB. According to the NLRB, the employee’s statements were protected by Section 7 because they “included workplace concerns and was addressed to people on Facebook, which including co-workers,” says Young.

It is imperative to note that “Section 7 applies to all employers, regardless of whether employees are unionized or not,” she says.

As an attorney for employers, Young is not pleased with the evolving interpretation of Section 7.

“Employees are using Section 7 to hide behind to protect bad behavior and the NLRB is agreeing. There has been an uptick in employees litigating and winning these cases,” says Young.

Tami Kamin Meyer is an Ohio attorney and writer who tweets as @girlwithapen.

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