“Not looking for anyone who has worked in a union.” This job requirement appeared recently in a help wanted ad in Craigslist for a Kitsap County company.
One of my staff brought it to my attention and asked, “Can you say that in an ad?” It’s an excellent question! Can you discriminate against someone because they have belonged to a union?”
What the NLRA has to say about discriminating against union members:
The National Labor Relations Act (NLRA) of 1935 guarantees workers the right to organize into labor unions and take collective action to bargain for better terms and conditions for work, and it also created the National Labor Relations Board (NLRB).
The NLRB governs relationships in businesses that are unionized, but they also have jurisdiction over most private sector businesses as it relates to employees’ concerted activity.
Discriminating against a job seeker or employee based on their participation in a union is an Unfair Labor Practice and will run a business afoul of the NLRA. It could result in the NLRB opening an investigation.
Although the NLRB can’t assess penalties, they can seek “make-whole” and informational remedies.
Advertising your biases can hurt you:
It’s never a good idea to advertise your biases to the public. And it’s really not a good idea to do something that invites the NLRA to visit your office!
Employers are humans, and as such, hardly immune from harboring biases. However, they must strive to rise above them, because not only do biases place employers in legally dicey situations, they also prevent employers from recognizing the potential in great candidates.
As a worker, I think I bring an awful lot to the table. But when I was 18, I was required to join the Screen Actors Guild for a summer job at a movie theater. The employer with an anti-union bias might rule me out because of that, and miss out on the many skills I offer.
Employers need to focus on bona fide occupational qualifications:
First and foremost, when filling a position, employers need to ask themselves the question, “What is the bona fide occupational qualification I want in this employee?”
Are you looking for someone who is a hard-working and enthusiastic team-player, who’s willing to wear multiple hats, and do whatever it takes to get the job done? Then just say it that way.
Don’t make assumptions about entire groups of people. That’s the way we get ourselves into trouble with the regulatory folks, and the way we lose out on workers who will make our company stronger and better.