New dataset reveals factors that correlate with success or failure of retaliation complaints and suggests future pathways to improving working conditions.
The report, “The Right to Talk to Co-Workers and Management About Working Conditions: A Study of Enforcement at the NLRB,” analyzed all decisions issued by administrative law judges on such complaints between 2015 and 2020 brought forth by workers who lacked union representation, where the worker tried to improve working conditions with co-workers but faced retaliation by their employer.
Overall, NIWR’s analysis suggests that the NLRB often vindicates strong claims of retaliatory discharge for efforts to improve working conditions if the complainants can get to an administrative law judge hearing. Among the findings, NIWR determined that 62% of individual non-union employees won reinstatement and backpay from administrative judges, with 92% of those decisions upheld through subsequent appeals.
“All workers have the right to talk to their coworkers and bosses about improving working conditions. It might be the most important but least well-known right we have,” said Jason Solomon, NIWR’s director. “Whether it’s sexual harassment, equal pay, or health and safety, the ability of workers to exercise power and enforce their rights depends on their ability to talk about issues at work without fear of retaliation. But the reality is that many workers, particularly low-income workers of color, do fear retaliation. At a time of such promise for building worker power, strengthening this right is critical to union organizing, workplace justice, and democracy.”
Despite positive outcomes for a majority of workers who go before NLRB judges, the report found the likelihood of being heard by an administrative law judge remains relatively small. Furthermore, successful claims often take months if not years to get limited relief, in part because of the agency’s chronic underfunding.
When employees lost, the most common reason was that their actions were not sufficiently “concerted” or directed at mutual aid. The report critiques these rulings and encourages the NLRB to recognize the full scope of existing law by expanding the “inherently concerted” doctrine to include discrimination and health and safety complaints.
NIWR also strongly supports the President’s recent budget request for increased NLRB funding and passage of the Protecting the Right to Organize (PRO) Act, which would allow workers to sue their employers for these rights violations and increase penalties for employers.
