As the Nation’s political season continues to intensify, the NLRB has issued a timely advice memo highlighting the test for determining when political activity is protected under federal labor law. In a recently issued advice memo released on September 14, the Division of Advice concluded that political activity with no “nexus to a specifically identified employment concern” was not protected by Section 7 of the National Labor Relations Act. What do employers need to know about this development, especially in light of today’s tumultuous political climate?

Summary Of Charge And Advice Memo

Consistent with a 2008 General Counsel memo for charges involving political activity, a dispute involving just such an issue was recently submitted to the NLRB’s Division of Advice for review. The charge alleged that an employee was terminated for working on “police transparency and accountability legislation” in the employee’s capacity as a state legislator. 

At the outset, the NLRB recognized that Section 7 generally protects conduct “in support of employees of employers other than their own” or to “improve their lot as employees through channels outside the immediate employee-employer relationship.” The agency went on to note that activity before a political body, such as a state legislature or local municipal council, is protected “if it relates in some demonstrable way to employee concerns over wages, hours or working conditions.”     

Likewise, the Division of Advice referred to caselaw protecting political advocacy when there is “a nexus between what is being advocated and employee terms and conditions of employment.” In some cases, as the NLRB further noted, the question of whether political activity is protected may be a matter of degree. As the U.S. Supreme Court has held, political advocacy may no longer be protected when the connection between it and employment interests “becomes so attenuated that the political advocacy cannot fairly be deemed to come within the protection of Section 7.”   

In the matter before it, however, the Division of Advice concluded that the employee advocated for policy reform within the limited capacity of a state delegate testifying before a local council, and as such it had nothing to do with their employment or that of anyone else. Rather, the political advocacy was done solely in the interest of the community at large and in furtherance of their own political agenda. Because there was no nexus between political activity and any articulated employment concern, the NLRB recommended dismissal of the charge.

Employer Takeaways

Notwithstanding the NLRB’s recommendations in this particular case, you should take note of the considerations for extending protection to workplace political activity as the general elections draw near. A 2008 Memorandum from the NLRB’s Office of the General Counsel highlights the following general principles:

• Non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern that takes place during the employee’s own time and in non-work areas is generally protected;
• On-duty political activity for or against a specific issue related to a specifically identified employment concern is subject to applicable restrictions imposed by lawful and neutrally applied work rules; and
• Leaving or stopping work to engage in political advocacy for or against a particular issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally applied work rules.

This guidance remains applicable within today’s politically charged workplace environment.