Over the past few years, the National Labor Relations Board has taken aggressive measures to extend labor law protections to some non-unionized employees. These decisions have involved employer policies restricting social media use, video or audio recording in the workplace, and employee disclosures of salary and other compensation details. Most of these decisions are based on Section 7 of the National Labor Relations Act (NLRA), which protects the rights of employees to engage in protected concerted activity.

When modifying policies to comply with these decisions, some employers forget that not all employees are protected under Section 7. As with most provisions of the NLRA, managers and supervisors cannot assert claims for violations of concerted activity rights. Identifying non-protected managers and supervisors can be clear in many organizations, but some positions such as team leaders fall into a gray area that requires legal analysis before determining those workers' status. Fair Labor Standards Act exempt/non-exempt status is a useful starting point for making these classification decisions, but does not guarantee NLRA compliance.

Changes to employee handbooks and other policies intended to comply with NLRB decisions on concerted activity should distinguish between supervisory and non-supervisory employees. Companies are within their rights to expect behavior from managers beyond that which they can legally impose on non-supervisory workers.

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