Whither Weingarten?

The National Labor Relations Board (NLRB), charged with interpretation and enforcement of the National Labor Relations Act (NLRA), has often been accused over the years of politicized decision- and rule-making. The NLRB is once again poised to make significant changes in the labor law landscape. The current NLRB is beginning to issue rules and decisions more favorable to organized labor, and its field offices (called “regions,” which are headed by “regional directors”) are issuing complaints expanding the rights of non-union workers. Recent examples include a series of challenges by the NLRB to employer disciplinary action against both unionized and non-unionized employees over social media posts critical of employers and supervisors, and a newly approved rule requiring that employers post in their workplaces a notice of employee rights under the NLRA (something that has never been required in the more than 75 years since the NLRA was enacted). Another policy area in which NLRB watchers believe the Board is poised to make a change is the scope of Weingarten rights. As a result, non-union employers should brush up on Weingarten rights and an employer's obligations when such rights are invoked.