The National Labor Relations Board (NLRB or “the Board”) provides protection for employees who bring NLRB claims in South Carolina. The NLRB enforces employees’ rights under the National Labor Relations Act (NLRA), which most people think deals only with unions. But the NLRA provides broader protection to employees beyond just regulating unions. This protection covers employees in South Carolina too, which is a right-to-work state (meaning a state where you can’t be prohibited from working just because you don’t join a union). The key phrase to trigger this protection is “concerted activity.”
What is Concerted Activity?
Any South Carolina employee who engages in “concerted activity” is protected against retaliation by the employer. Concerted activity occurs when two or more employees take action for mutual aid and protection regarding terms and conditions of employment.
That means if two employees have a conversation about how bad things are at work (safety, racism, discrimination, work hours), that’s concerted activity.
If the employees discuss wages of themselves or go to their employee with concerns or complaints about wages, that’s concerted activity.
If one employee speaks to the company on behalf of other employees about improving workplace conditions, that’s concerted activity. Even if you’re not in a union and there’s no union at your workplace, you still have protection against retaliation under the NLRB.
The Process of Filing NLRB Claims in South Carolina
I’ve handled a number of NLRB charges over the years, normally in conjunction with another pending case with the EEOC, SC OSHA, or in court. So what normally happens when an employee files an NLRB charge in South Carolina?
Once the charge is accepted by the NLRB and assigned a docket/case number, the employer is notified of the pending charge. Then the NLRB will schedule a time for the employee to meet with a Board agent to provide a sworn affidavit as to the allegations in the charge. The employee can provide other documents (emails, texts, recordings, company policies, etc.) as evidence, along with providing other witnesses to the allegations. If the employee fails to cooperate in the investigation, then the charge may be dismissed. Once the Board agent has gathered the information, the regional director will decide whether the case is meritorious. If so, the Board attempts to resolve the matter between the parties, and if the parties cannot resolve the case, then the Board issues a complaint against the company. Next steps are a hearing before an administrative law judge.
Remedies for South Carolina Employees
Under the NLRA, the Board can seek “make-whole” remedies, such as reinstatement and backpay for discharged workers, as well as informational remedies, which require the employee to post a notice in the workplace that promises the company won’t continue to violate federal law.
During the investigation, the Board also has the ability to seek an injunction (an order from the court) to restore or maintain the status quo where an employee’s rights have been violated. For example, the injunction could require the company to return the employee to work (assuming the discharged employee has not already found another job).
Throughout this process, you have the right to your own attorney. Normally, if a client has potential NLRB claims in South Carolina, I will draft and file the charge myself, talk with the investigator, attend the interview session with the client and investigator, and assist with any settlement discussions that the parties engage in.
If you have any questions about the NLRB process, please feel free to reach out to our office and schedule a consult to see whether your situation falls within the NLRA’s protection against retaliation.
