The National Labor Relations Act or NLRA (29 U.S.C. §§ 151 and following) gives most employees the right to unionize. This enables them to negotiate collective employment contracts through union representatives rather than having to deal with employers individually.
The National Labor Relations Board (NLRB) administers the law and interprets its provisions. The NLRB conducts union elections and enforces the NLRA’s rules of conduct, determining whether employers have engaged in unfair labor practices.
1. Only Employees Covered
The NLRA applies only to employees. ICs have the right to form a union if they wish to do so, but they are not protected by the NLRA. You can decline to use the services of ICs who form a union or simply express support for a union. You can’t do this with employees who are covered by the NLRA.
2. Employees Exempt From the NLRA
Not all private sector employees are covered by the NLRA. Exempt employees include:
- managers and supervisors
- confidential employees—such as company accountants
- farm workers
- members of an employer’s family
- most domestic workers, and
- workers in certain industries—such as the railroad industry—that are covered by other labor laws.
3. Determining Worker Status
If a worker does not fall within one of the classes of NLRA-exempt employees, you need to decide whether he or she is an employee or IC for NLRA purposes. The common law right of control test is used for this purpose. (See Federal Taxes and the IRS Rules for a discussion of the IRS common law test.)