On July 22, 2008, the General Counsel of the National Labor Relations Board issued an Advice Memorandum setting forth the framework the Board will use to analyze and prosecute charges involving discipline of employees who engage in political advocacy and activism.  Memorandum GC 08-10 notes at the outset:

The important question of where, and on what basis, to draw the line between protected concerted activity and unprotected political activity can be a difficult one.

Board and Supreme Court precedent make clear that the National Labor Relations Act's definition of protected activity -- including activity for "mutual aid or protection" of fellow employees -- is broad enough to cover various forms of political activism.  Lobbying members of Congress, appeals to governmental agencies, and distributing literature regarding work-related political issues have all been held to be "protected" activities as long as they pertain to working conditions.  Purely political activity divorced of reference to particular work-related issues, on the other hand, is generally not protected by Section 7 of the Act.

Regarding the 2006 immigration boycotts and rallies that gave rise to the analysis documented in this Memorandum, the General Counsel concluded: 

In sum, immigrant employees and even non-immigrant employees could reasonably believe that the bill could impact their interests as employees.[]  For these reasons, employee attendance at and support of these demonstrations in our view was within the scope of the "mutual aid or protection" clause.

Nevertheless, the GC explains, there may be circumstances under which the means by which the political advocacy are carried out strip the activity of its protection -- as in the cases above, where employees violated employers' neutral and legitimate attendance policies to parttake in rallies.  In sum, the Memorandum suggests three categories of circumstances, as follow:

· non-disruptive political advocacy for or against a specific issue related to a specifically identified employment concern, that takes place during the employees' own time and in nonwork areas, is protected;

· on-duty political advocacy for or against a specific issue related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrallyapplied work rules; and

· leaving or stopping work to engage in political advocacy for or against a specific issue related to a specifically identified employment concern may also be subject to restrictions imposed by lawful and neutrally-applied work rules.

In a politically volatile season leading up to, and immediately following, major national elections, employers must take care in reviewing proposed disciplinary action against employees involving themselves in the political process.  This Memorandum provides significant guidance, but employers with additional questions about their rights and obligations should contact one of our attorneys to discuss matters further.