Unions sometimes use a strategy called “salting” to organize employees. It occurs when a union sends a union member (a “salt”) to an unorganized job site to obtain employment and then organize the employees. Because job applicants are employees under the National Labor Relations Act (NLRA), a salt may be protected from discrimination under the NLRA. In July, the National Labor Relations Board (NLRB) Acting General Counsel, William B. Cowen (AGC), issued guidance instructing NLRB representatives when investigating cases in which a job applicant files a charge against an employer that refused to consider the applicant because he or she was engaged in salting. The memo provides an opportunity for employers to review their hiring processes to avoid getting caught up in charges from a salting campaign.
The NLRA prohibits employers from discriminating against job applicants based on union affiliation or interfering with applicants’ efforts to organize employees. A potential salt may identify prior union affiliation on an application or explicitly state an intent to organize employees to take advantage of these protections. If an employer refuses to consider the applicant or refuses to hire the applicant, the applicant may file a charge with the NLRB, arguing that failing to consider or hire the applicant violated the NLRA.
Excluding whether the employer refused to consider or hire the applicant for non-discriminatory reasons, there are two primary legal issues that arise in...
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