Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act

Source: David L. Gregory, West Virginia Law Review, Winter, 2009

No matter how many workers are injured in recurring accidents due to unsafe conditions, their claims for benefits following injuries sustained in workplace accidents, as well as any actions for unlawful retaliation as a consequence of pursuing their state law workers’ compensation statutory rights, are not protected, concerted activities for purposes of Section 7 of the NLRA. … Despite a tumultuous history surrounding the issue, especially concerning the interpretation of Section 7 concerted, protected activity, National Labor Relations Board decisions continue to hold that filing a safety and health claim with OSHA is protected activity under Section 7 of the NLRA. … For now, to maintain the protections of Section 7 of the NLRA for employees who individually resort to external agencies with complaints of unlawful discrimination, for example, it is imperative that the individual employee accentuate the relevant language of the pertinent collective bargaining agreement that prohibits unlawful discrimination. … Accordingly, after three decades of decisions by the NLRB and the circuit courts vitiating the Section 7 rights of employees who pursue workers’ compensation claims, it will take a decision by the Supreme Court to restore those Section 7 protections to employees injured at work.

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