Unfair Employment Practices: Everything You Need to Know
Unfair employment practices refer to actions that unions or employers take that happens to be illegal, according to the National Labor Relations Act (NLRA).8 min read
What Are Unfair Employment Practices?
Unfair employment practices refer to actions that unions or employers take that happen to be illegal, according to the National Labor Relations Act (NLRA) as well as other labor laws. Some NLRA rules are applicable to interactions between unions and employers while other rules have been created to protect workers from unfair treatment at the hands of an employer or union.
What Is the NLRA?
The NLRA grants employees the right to join together to attempt to improve an employer's terms and conditions. These employees can do so by joining a union or forming a union. The NLRA establishes rules for collective bargaining, union elections, and more to keep these rights for employees.
The NLRA also makes it illegal for employers and unions to take part in unfair labor practices that would interfere with the rights of employees or disturb the balance that the NLRA maintains between employers and unions.
The NLRA prevents employers from attempting to interfere with the right of an employee to join, organize, or help a union. It also disallows employers from interfering with an employee's right to engage in protected, concerted activities or engage in collective bargaining. For example, employers are required to treat conversations about unions among employees like other matters that are not about work. Employers are not allowed to create special rules that prohibit employees from communicating about unions or workplace grievances to each other.
The NLRA does not allow employers to dominate a union or give illegal help to a union. Employers are not allowed to set up company unions or sham unions. They also cannot interfere with or dominate labor organizations. The National Labor Relations Board looks at the facts holistically to decide whether an employer is controlling a workplace group unfairly. For example, the NLRB will look at who began the group, the group's purpose, and the decision-making process for the organization to decide if the employer is unfairly controlling the workplace group.
What Else Does the NLRB Prohibit Employers From Doing?
The NLRA prohibits employers from doing all of the following:
- Discriminating against individuals to discourage or encourage membership in a union or other labor organization.
- Replacing employees who go on strike to protest against an unfair labor practice.
- Retaliating against employees for giving testimony to or filing a charge with the NLRB.
- Refusing to participate in collective bargaining that is done in good faith.
- Creating hot cargo agreements, which are arrangements between a union and employer where the employer vows to not do business with another organization, with unions, or other labor organizations.
What Does the NLRB Prohibit Unions From Doing?
The NLRA prohibits unions from doing the following:
- Coercing or restraining employees to not use their right to not participate in or support a union; for example, unions are not allowed to threaten employees who don't want to participate in a union, and they are not allowed to expel union members for crossing a picket line that is illegal.
- Disallowing employers from choosing their bargaining representative; for example, unions cannot refuse to meet with an employer due to their choice of a bargaining representative.
- Causing or attempting to cause an employer to discriminate against employees to encourage or discourage membership in a union; for example, unions cannot have employers penalize any employees who participate in activities that are anti-union.
- Refusing to participate in collective bargaining that is done in good faith.
- Engaging in boycotts, strikes, and other coercive actions for purposes that are illegal.
- Charging discriminatory or excessive membership fees.
- Featherbedding, which is when a union attempts to convince an employer to pay for work that will not be performed.
If a union is not certified to represent groups of employees, said union cannot picket or threaten an employer with picketing to force the employer to recognize it as a union. The union cannot picket to force the employer to bargain with them nor can they force the employees to accept the union as their representation. For all these prohibitions to apply, the following also has to be true:
- There is already another union that represents the rights of the employees.
- A valid election for representation was held within the last year.
- The union doesn't file a petition with the NLRB for an election within a month after the picketing begins.
Just like employers, unions cannot make hot cargo agreements as far as the NLRA is concerned. The NLRA makes it illegal for unions to picket, strike, or otherwise attempt to stop collective work at health care institutions without providing notice to the Federal Mediation and Conciliation Service and the institution.
Reporting Unfair Practices: Federal Compliance
The U.S. Department of Labor works according to a number of federal labor laws that determine appropriate employee rights and practices for workers in the United States. Multiple dedicated agencies share the responsibility of enforcing these laws. Different agencies handle different categories of violations.
For example, if an employee believes that he was fired due to discrimination, he can visit the home page of the U.S. Department of Labor and click on the "termination" link and then the "discrimination" link to file a claim. He will be able to file a claim at the Civil Rights Center of the U.S. Department of Labor.
On the other hand, if an employee wants to make a claim about a workplace's unsafe working conditions, he can click on "workplace safety & health" to be redirected to the Occupational Safety and Health Administration. The agency the employee contacts will evaluate the claim and determine whether the employer is in violation of federal labor laws. They may also recommend that the employee contact the state labor board instead.
Reporting Unfair Practices: Local Compliance
State-run labor departments are able to create and enforce labor laws of their own. However, the labor laws have to fall within the outlines that the federal government has created. Therefore, practices that are legal federally are not always legal locally. If an employee has contacted the U.S. Department of Labor and the claim has gone nowhere, their next option is to contact the state board. The state board will evaluate the claim and determine whether the company is violating local regulations.
Employees can report their claims to local labor boards by telephone, through email, or in person. Complaints are required to include the names of the employee as well as the company. There must also be an outline detailing the violations and dates of when the incident occurred. Employees can check their state labor board's website for addresses, email contact information, and phone numbers.
Reporting Unfair Practices: Telephone Help
The U.S. Department of Labor has multiple telephone service lines in order to address different categories of unfair practices in a number of industries. For example, the U.S. Department of Labor has different phone lines for occupational safety, working women, and hourly wages.
Employees who want to file a claim should pick a category and industry that is the best fit for the unfair practices that they have seen at work. Once they have done this, they should contact the best department.
If an employee has looked at all the possibilities and remains unsure, or if they believe that none of the options is a good fit for the situation, they should contact the general help line. A customer service agent will direct the employee to the right person and inform the employee to contact the state labor board if necessary.
Reporting Unfair Practices: Email Assistance
Employees can reach the Department of Labor through email. Some of the benefits of doing so include being able to file the claim in writing. This written claim will be added to the permanent record that will be made for the claim. Documented proof of the response will also be added to the permanent record. If an employee is reporting illegal or unfair labor practices, it is helpful to have such legal backup in the event the case goes forward. However, it is difficult for employees to be anonymous when reporting unfair practices through email. The element of anonymity is eliminated because personal information and the email address of the employee is a part of the process.
Reporting Unfair Practices: Whistleblower Protections
Whistleblowers refer to individuals who report illegal or unfair business practices. Such individuals are often vulnerable to attacks from the company they are filing a claim against. Some whistleblowers also face abuse from their co-workers, and others lose their jobs due to reporting unfair or illegal business practices. Therefore, these whistleblowers need protection to avoid facing abuse.
The U.S. Department of Labor offers a number of protections for individuals who report unfair practices so that they are not victimized by the company or co-workers. Whistleblowers are protected from being fired, transferred, and from experiencing cuts in hours or pay after reporting unsafe or unfair labor practices. The U.S. Department of Labor recognizes that it is important to protect whistleblowers to ensure that other employees aren't deterred from reporting their grievances in the future due to the retaliation that they saw their co-workers subjected to for filing a claim.
Reporting Unfair Practices: Informal Complaint
An informal complaint is when an employee approaches a supervisor or HR department staff about the issues or concerns they have with potential hiring practices. Employees who do this should make sure that they have detailed and accurate information indicating why they believe unfair hiring practices are occurring. For example, if an employee believes he was denied a promotion due to discrimination, he should include a copy of his resume, the job posting, interview notes, and documentation about his performance. A performance appraisal would be an example of documentation of an employee's performance.
Employees must provide supporting documentation about unfair hiring practices. It is easy to obtain this documentation for employees who are complaining about not receiving a promotion that they wanted. However, if an employee is complaining about another applicant, it may be difficult for the employee to obtain documentation about the other person. However, this does not mean that the employee should not make their concerns known about the hiring practices of the employer.
Reporting Unfair Practices: Formal Complaint
Employees can file formal complaints about the hiring practices of an employer with the U.S. Equal Employment Opportunity Commission. Employees are not required to file in-house and informal complaints with employers before filing a claim with the EEOC. However, the intake officer from the EEOC will ask the employee about the steps he took to let the employer know about his grievances.
Reporting Unfair Practices: OFCCP Complaint
Government contractors receive money for goods or services sold to the federal government. Government contractors have to follow the same equal opportunity laws as non-contractors. However, government contractors are also bound to affirmative action as an additional standard when it comes to equal employment. Executive Order 11246 mandates affirmative action and the U.S. Department of Labor enforces this executive order.
If a government contractor has hiring practices that an employee believes are unfair, the employee can file a complaint with the Office of Federal Contract Compliance Programs. Both the OFCCP and the EEOC will work together to investigate claims. An employee only needs to file a complaint with one of the organizations rather than both.
If you would like to learn more about unfair employment practices, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.