“Major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.” Grutter v. Bollinger, 539 U.S. 06, 30 (2003).

A. Benefits of Affinity Groups

Affinity Groups, also known as Employee Resource Groups (“ERGs”) and diversity, equity, and inclusion (“DEI”) groups are employee groups generally organized based on social identity, shared characteristics, or life experiences. Many employers choose to acknowledge and support these groups, which provide a variety of benefits to employees, such as fostering solidarity, bringing up morale, and increasing productivity.

B. National Labor Relations Act (“NLRA”)

Under the NLRA, it is an unfair labor practice for an employer to “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” A “labor organization” is defined as “any organization of any kind . . . in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances . . . or conditions of work.” Accordingly, considering this broad definition, employers should be cognizant that affinity groups risk stepping on the NLRA’s toes.

The primary authority governing these issues is Electromation, Inc., 309 NLRB No. 163 990 (1992). In this case, the National Labor Relations Board (“NLRB”), the administrative agency that enforces the NLRA, set out the two-step inquiry to determine whether there has been an 8(a)(2) violation: (1) is the committee, group, organization, association, etc., a “labor organization” under the NLRA?; and (2) did employer cross the invisible line into the NLRA’s prohibitions by interfering, dominating, or unlawfully supporting the organization?

The answers to these questions as applied to ERGs and DEI groups are anything but clear.

C. Labor Organization

A labor organization exists if “(1) employees participate, (2) the organization exists, at least in part, for the purpose of ‘dealing with’ employers, and (3) these dealings concern ‘conditions of work’,” such as grievances, wages, fringe benefits, hours of employment, etc. Therefore, if it is an “organization” of any kind in which employees participate and which deals with the employer relating to conditions of work it may be considered a labor organization under the NLRA.

A primary inquiry is whether there is “dealing”—bilateral discussions between the group and the employer to reach bilateral solutions. This can be based on a pattern of a group merely making proposals to management and management responding, accepting, rejecting, or implementing these proposals. The NLRB acknowledged that determining whether the group is a labor organization is not a streamlined analysis but is fact intensive. For example, in Electromation, the employer created and sponsored “Action Committees” which were organized to address employees' dissatisfaction with certain company policies and allow for a space where employees could engage in a dialogue with employer representatives to promote other employee’s ideas and solutions to various problems. The NLRB held the action committees were a “labor organization” because the employees participated in these committees which existed “for the purpose of dealing with” the employer about conditions of work ^& .

It seems clear, therefore, that where an affinity group begins a process of bilateral discussions with the employer’s representatives to reach bilateral solutions regarding the terms or conditions of the employment, it wades into labor organization waters.

D. Section 8(a)(2)’s Prohibitions

The analysis does not stop with finding that a group is a labor organization. The second step is determining whether the employer “dominated,” interfered with, or unlawfully supported the labor organization. There are a plethora of NLRA cases that explain the circumstances where these circumstances may be present.

The NLRB noted that each case would depend on the facts and a close look at Electromation provides indications of when ERGs do not violate 8(a)(2). For example, “when the formulation and structure of the organization is determined by employees, domination is not established, even if the employer has the potential ability to influence the structure or effectiveness of the organization.” Additionally, merely “initiating” (i.e., suggesting employees organize a committee) may not enter the sphere of dominating, interfering, or unlawfully supporting a labor organization because, as the NLRB recognized, Congress intended to draw a difference between interference and “minimal conduct.” Further, the NLRB stressed that “paying employee members of the committee for their meeting time and giving that committee a space to meet and supplies” is not a per se violation. But where that support cannot be separated from domination or interference, it may violate section 8(a)(2). Again, this depends wholly on the facts of each group and the employer’s own involvement.

E. Section 7 and Concerted Activity

Another concern that may arise with affinity groups is section 7 of the NLRA. Section 7 protects employees’ rights to gather with coworkers to address issues at work, with or without a union. Groups that merely band together or individuals seeking to speak for the collective’s mutual aid and protection may be engaging in protected activity.

Therefore, employers should move forward with caution when limiting the purpose of affinity groups to avoid impeding on the member’s section 7 rights.

F. Conclusion

In conclusion, employers should be aware that depending on the circumstances, ERGs or DEI groups may be considered labor organizations under the NLRA. Further, employers should avoid the appearance of interfering, dominating, or unlawfully supporting such organizations. Employers with questions should consult with legal counsel.