Have you ever heard of Section 7 rights under the National Labor Relations Act, which is enforced by the National Labor Relations Board? Not too many years ago, the NLRB was primarily pro-union and enforced labor laws. That has changed in our careers with the decline in private-sector unionism since 1955. Today's NLRB enforces employee rights at non-union employers, too - and increasingly so. Enter the trusted employee benefit adviser.
NLRA Section 7 rights guarantee employees the right to engage in concerted activities for mutual aid or protection of themselves against employers or for the mutual aid or protection of other employees. Let us take this rule down a notch. Assume your employer cuts the hours of employees to eliminate eligibility for health benefits. Maybe those employees get angry with the employer and go on Facebook or other social media to sound off. One or more of the employees bad-mouth the employer. This negative media attention comes off as a negative employment action and debases the employment policies of the employer. One employee invites other "friends" to chime in on the rant, which they do. They collectively name their employer or manager by name.
What do you think most employers would do in the face of such negative publicity with their dirty laundry out there for the world to see? Maybe the employer blows a gasket at the employees the next morning. Here is what your buyers need to know: That would be violation No. 1 of employees' Section 7 rights. Section 7 prohibits employers from interfering with employees' protected concerted activity to improve their working conditions.
Assume the verbal give-and-take in this tense meeting goes south and one or more of the employees receive disciplinary action. The employees discussed in public their perceived injustices of poor supervision, reduced hours and pay, loss of benefits and other employment conditions. Here is a second factoid your buyers need to know: Retaliation is violation No. 2. The NLRA prohibits employers from disciplining or otherwise retaliating against employees for engaging in concerted protected activity under the NLRA.
It could happen to you
Is this scenario possible given so many employers consider dipping their FTE count under 50 employees? Yes. The NLRA often comes down on employees' side and employers should be aware of this probable outcome. The NLRB levies fines against the offending employer. Those fines can be enormous.
Is the employer's good name and brand damaged by the concerted protected activities of aggrieved employees? Probably. Do employees have a right to be blatant about their perceived injustices at their employer? Yes.
Will affected employers considering their ACA strategy have negative repercussions on plan participants? You be the judge, and bone up on these legal provisions. Advise your clients accordingly. Section 7 and its companion Section 8 of the NLRA are differentiating and good advice that you should be talking to your employers about now.
For more ammunition in your selling quiver, please review my column on ERISA violations from last month. Advising your clients on ERISA Sections' 510 and 502 combined with the material covered here is a potent piece of consultation to an employer audience that is, unfortunately, ill-prepared for the advent of the ACA.No
Davidson, CEBS, is founder of Davidson Marketing Group and FutureOffice Network. He is also on the faculty at the Sheldon B. Lubar School of Business at the University of Wisconsin, Milwaukee. Reach him at firstname.lastname@example.org.
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